10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 87
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Brion Wells Represented By
Kahlil J McAlpin
Joint Debtor(s):
Cathy Delois Ray Represented By Kahlil J McAlpin
Movant(s):
Deutsche Bank National Trust Represented By Mark D Estle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 72
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Rafael Banuelos Represented By Leonard Pena
Joint Debtor(s):
Maria Guadalupe Banuelos Represented By Leonard Pena
Movant(s):
Ditech Financial LLC Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 41
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ada Rennie Vinett Castillo Represented By
Richard L. Sturdevant
Movant(s):
U.S. Bank National Association, as Represented By
Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 36
- NONE LISTED -
Debtor(s):
Kevin Roy Johntz Represented By David P Farrell
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 45
Debtor(s):
Marisa Vattuone Represented By Jeffrey N Wishman
Movant(s):
PennyMac Loan Services, LLC as Represented By
William F McDonald III Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 45
Debtor(s):
Eduardo Moran Ibarra Represented By Luis G Torres
Joint Debtor(s):
Maria Elena Ibarra Represented By Luis G Torres
Movant(s):
WELLS FARGO BANK, N.A. Represented By Robert P Zahradka Rosemary Allen Sabekhon Nahar Jenelle C Arnold
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 46
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Lucy Ahumada Represented By Andrew P Altholz
Movant(s):
Specialized Loan Servicing LLC Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK N.A. vs
DEBTOR
Docket 36
Debtor(s):
Rita M Fiora Represented By
Bryan L Ngo
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Daniel K Fujimoto Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DON RICARDO VILLAS HOA
vs DEBTOR
Docket 52
- NONE LISTED -
Debtor(s):
Doris Burns Represented By
Stephen S Smyth William J Smyth
Movant(s):
Don Ricardo Villas HOA Represented By Neil B Katz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, NA vs
DEBTOR
Docket 40
- NONE LISTED -
Debtor(s):
Iliana Vidal Represented By
Joshua R Engle
Movant(s):
U.S. Bank, N.A., successor trustee to Represented By
Daniel K Fujimoto Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 42
Debtor(s):
Juan Carlos Cayetano Represented By Jeffrey N Wishman
Movant(s):
Nationstar Mortgage LLC Represented By Merdaud Jafarnia Jennifer C Wong Nancy L Lee
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 29
Debtor(s):
Daniel Mendoza Represented By Julie J Villalobos
Movant(s):
Wells Fargo Bank, N.A. Represented By Jennifer C Wong Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 29
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jose Luis Montes Represented By Phillip Myer
Joint Debtor(s):
Silvia Montes Represented By Phillip Myer
Movant(s):
The Bank of New York Mellon FKA Represented By
Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
INTERNATIONAL CITY MORTGAGE, INC
vs DEBTOR
Docket 27
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 30).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Matthews Represented By Andrew Moher
Joint Debtor(s):
Monica Matthews-Diaz Represented By Andrew Moher
Movant(s):
International City Mortgage, Inc. Represented By
Erin M McCartney
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 42
Take this motion for relief from the automatic stay off calendar, in view of this court's order (dkt. 48, para. 14) granting the debtor's motion to commence loan modification program, without prejudice to the movant self-calendaring this motion again if the loan modification program is terminated without a consensual loan modificaton. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Catalina Walsvick Represented By Thomas B Ure
Movant(s):
Deutsche Bank National Trust Represented By Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 22
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Maria Del Rosario Pimentel Represented By William G Cort
Movant(s):
Nationstar Mortgage LLC Represented By Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Rita Esparza Represented By
Erika Luna
Movant(s):
Deutsche Bank National Trust Represented By Daniel K Fujimoto Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b) (1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you
10:00 AM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kevin Turner Pro Se
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Theron S Covey Sean C Ferry
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE LLC
vs DEBTOR
Docket 24
Debtor(s):
Jorge Tovar Represented By
Luis G Torres
Movant(s):
Nationstar Mortgage LLC as Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 41
Debtor(s):
Johnny N Siliga Represented By Gary M Erickson
Joint Debtor(s):
Faalagilagi Meni Siliga Represented By Gary M Erickson
Movant(s):
Deutsche Bank National Trust Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 38
Debtor(s):
Irene Garcia Represented By
Steven A Alpert
Movant(s):
Ditech Financial LLC fka Green Represented By
Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 28
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Matthew Mykola Dennis Horeczko Represented By
Sam Benevento
Movant(s):
The Bank of New York Mellon FKA Represented By
Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA
vs DEBTOR
Docket 39
Grant the motion as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Key documents reviewed (in addition to motion papers): debtor's opposition (dkt. 46).
Tentative findings of fact:
In violation of the loan documents, an interest in the subject property purportedly was transferred to the debtor, either individually or as trustee of a purported trust.
The transfer was part of a scheme to delay or hinder movant’s remedies against the property by implicating the automatic stay of 11 U.S.C. 362(a) in the debtor’s bankruptcy case.
This court does not find that the debtor was part of any such scheme (i.e., based on the record before this court it appears that this may be a so-called “hijacked” or "dumping" case in which a third party seeks to implicate the automatic stay for their own benefit, without the debtor’s participation or acquiescence, by transferring property into a random bankruptcy estate, or by back-dating or falsifying a grant deed to make it appear that such a transfer occurred).
Tentative conclusions of law:
Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk- 10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket
10:00 AM
no. 31), as applicable:
Jurisdiction. This court has jurisdiction to grant the type of relief requested in the motion.
Termination of stay. The automatic stay, if it applies, is terminated pursuant to 11 U.S.C. 362(d)(1), (d)(4), and 1301(c).
Relief notwithstanding future bankruptcy cases. If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case. For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. The 14 day stay under FRBP 4001(a)(3) is waived.
No prejudice to debtor intended. Nothing in the foregoing disposition should be interpreted to support the application of 11 U.S.C. 109 (g)(2) in the event of any future dismissal of this bankruptcy case. See generally In re Leafty, 479 B.R. 545, 550 (9th Cir. BAP 2012); In re Payton, 481 B.R. 460 (Bankr. N.D. Ill. 2012).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marie Edna Garbanzos Represented By Dana M Douglas
10:00 AM
Movant(s):
HSBC Bank USA, National Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NA vs
DEBTOR
Docket 23
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Key documents reviewed (in addition to motion papers): debtor's opposition (dkt. 25); movant's reply (dkt. 26).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Terence Mark Vallejo Represented By Charles J Brash
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Merdaud Jafarnia
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 18
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether they will agree to a continuance for a short sale and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 21).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis Arturo Zelaya Represented By Steven A Alpert
Movant(s):
HSBC Bank USA, National Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for Relief from Stay [RP] LIN VAN ENTERPRISES
vs
DEBTOR
Docket 15
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Armando Bautista Pro Se
Movant(s):
Lin Van Enterprises Represented By Michael Lindley
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK NA
vs DEBTOR
Docket 16
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) the debtor's alleged innocence of any participation in the prior unauthorized transfers and bankruptcy filings and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 18).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Earl Brian Williams Represented By Brad Weil
Joint Debtor(s):
LaDonna Marcella Williams Represented By Brad Weil
Movant(s):
Wells Fargo Bank NA Represented By Tunisia Cooper
10:00 AM
Trustee(s):
Brandye N Foreman
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for Relief from Stay [RP] WELLS FARGO BANK
vs
DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk- 10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no
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automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case. For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rafaela H Rolon Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
C. LLOYD FREEMAN FAITH S. FREEMAN vs
DEBTOR
Docket 9
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to
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grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Albert Mueller Pro Se
Movant(s):
C. LLOYD FREEMAN and FAITH Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 91
- NONE LISTED -
Debtor(s):
Mario O Retana Represented By Michael F Frank
Joint Debtor(s):
Sandra Del Socorro Murillo Represented By Michael F Frank
Movant(s):
Wells Fargo Bank, N.A. dba Wells Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 43
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Charles E Mallory Represented By Rex Tran
Movant(s):
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SANTANDER CONSUMER USA INC
vs DEBTOR
Docket 40
- NONE LISTED -
Debtor(s):
Lynn Mary Logan Represented By Michael Jay Berger
Movant(s):
Santander Consumer USA Inc. dba Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE DUNNING LAW FIRM ONEMAIN FINANCIAL, LLC
vs DEBTOR
Docket 45
Grant as provided below. Appearances are not required.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Albert Alvarez Represented By Mark J Warfel
10:00 AM
Movant(s):
The Dunning Law Firm OneMain Represented By
Donald T Dunning
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
VW CREDIT, INC.
vs DEBTOR
Docket 36
Debtor(s):
Patricia Hart Almeida Represented By Andrew Moher
Movant(s):
VW Credit, Inc., servicing agent for Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 42
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 46).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cristina Marie Pagan Nowling Represented By Kevin T Simon
Movant(s):
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
[2016 TOYOTA COROLLA VIN # 5YFBURHE4GP485938]
ALLY BANK
vs DEBTOR
Docket 66
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Joshua Daniel Hart Represented By Michael Jay Berger
Movant(s):
Ally Bank Represented By
Adam N Barasch
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
[2016 FORD TRANSIT VIN # 1FBAX2XM9GKA49446]
ALLY BANK
vs DEBTOR
Docket 63
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Joshua Daniel Hart Represented By Michael Jay Berger
Movant(s):
Ally Bank Represented By
Adam N Barasch
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
MERCEDES-BENZ FINANCIAL SERVICES
vs DEBTOR
Docket 35
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Elba Maria Padilla Represented By
Ramiro Flores Munoz
Movant(s):
Mercedes-Benz Financial Services Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAB WEST, LLC
vs DEBTOR
Docket 23
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Lance Ryan Keefer Represented By Alon Darvish
Movant(s):
Cab West, LLC Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICREDIT FINANCIAL SERVICES, INC.
vs DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Danielle Jasmine Clark Pro Se
Movant(s):
Americredit Financial Services, Inc., Represented By
Jennifer H Wang
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 17
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Beatriz Jimenez Pro Se
Movant(s):
U.S. BANK NATIONAL Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 12
Grant, subject to the following conditions, and also subject to any opposition at the hearing. Appearances required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Janice Jiwon Kong Represented By Nicholas W Gebelt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 70
Debtor(s):
Fredy Angel Beltran Represented By Michael Poole
Movant(s):
Wells Fargo Bank, National Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WESTLAKE FINANCIAL SERVICES
vs DEBTOR
Docket 90
Debtor(s):
Vernard M Winston Represented By
Richard L. Sturdevant Andy C Warshaw
Joint Debtor(s):
Phyllis Winston Represented By
Richard L. Sturdevant Andy C Warshaw
Movant(s):
WESTLAKE FINANCIAL Represented By Jamie D Hanawalt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 105
Tentative Ruling for 1/9/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling. This matter has been continued a number of times to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required. There is no tentative ruling. At the hearing on 10/3/17, this court continued the matter to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
Tentative Ruling for 10/3/17:
10:00 AM
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 107).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Partrick I. Ikhifa Represented By
Anthony Obehi Egbase Onyinye N Anyama Edith Walters
W. Sloan Youkstetter
Movant(s):
Wilmington Savings Fund Society, Represented By
Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 31
Tentative Ruling for 1/9/18 (same as for 12/5/17 except encouraging telephonic appearances):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 12/5/17 hearing on the motion, this court continued the hearing at the request of the parties to provide them additional time to negotiate the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 33).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sunder R. Chava Represented By Michael V Jehdian
10:00 AM
Movant(s):
Ditech Financial LLC Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA
vs DEBTOR
Docket 55
Tentative Ruling for 1/9/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling. This matter was continued to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under
10:00 AM
11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rachel Ramos Herron Represented By
Andrew Edward Smyth
Movant(s):
HSBC Bank USA, National Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 70
Debtor(s):
Arturo Romero Jr. Represented By Kevin T Simon Matthew D Resnik
Movant(s):
JPMorgan Chase Bank, National Represented By
Merdaud Jafarnia Jennifer C Wong Lee Gates
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SANTANDER CONSUMER USA
vs DEBTOR
Docket 138
Tentative Ruling for 1/9/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 12/19/17 hearing on the motion, this court continued the hearing at the request of the debtors to provide them additional time to retain counsel and/or negotiate the terms of an adequate protection order, with procedures for seeking earlier relief (see dkt. 148). There is no tentative ruling, but the parties should be prepared to address the status of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
10:00 AM
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Richard A Sorci Pro Se
Joint Debtor(s):
Judy E Sorci Pro Se
Movant(s):
SANTANDER CONSUMER USA Represented By
Jennifer H Wang
Trustee(s):
Timothy Yoo (TR) Represented By Carmela Pagay
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 46
Debtor(s):
Terica Amber Roberts Represented By Dheeraj K Singhal
Movant(s):
Wells Fargo Bank, N.A. Represented By Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 34
Tentative Ruling for 1/9/18 (same as for 11/14/17 and 9/19/17): Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 11/14/17, 9/19/17 and 8/22/17 hearings on the motion, this court continued the hearing at the request of the parties to provide them additional time to negotiate the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
There is no stay, due to multiple cases. Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) the debtor's prior
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case (#16-24187-VZ) was dismissed (on 11/14/16) within one year before this case was filed (on 1/3/17), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to the debtor in personam and as to property of the debtor. See In re Hernandez & Jiminez, Case No. 2:11-bk- 53730-NB, Dkt 40.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1). Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Debtor(s):
Brent Green Represented By
R Grace Rodriguez
Joint Debtor(s):
Cheryl Jacobs-Green Represented By
R Grace Rodriguez
Movant(s):
WELLS FARGO BANK, N.A. Represented By Robert P Zahradka Darshana Shah
Oneika White-Dovlo
10:00 AM
Trustee(s):
Jenelle C Arnold
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA.
vs DEBTOR
Docket 26
Tentative Ruling for 1/9/18 (same as for 11/7/17 except encouraging telephonic appearances):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 11/7/17 hearing on the motion, this court continued the hearing at the request of the parties to provide them additional time to negotiate the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kevin Milan Williams Represented By Scott Kosner
Movant(s):
WELLS FARGO BANK, N. A. Represented By
Dane W Exnowski
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK
vs DEBTOR
Docket 134
Debtor(s):
Carl Dotson Represented By
Matthew D Resnik
S Renee Sawyer Blume
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Timothy J Silverman Jamie D Hanawalt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 13
Grant, subject to the following conditions, and also subject to any opposition at the hearing. Appearances required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria O. Ahumada Represented By Ali R Nader
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 101
Grant. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edward Rolando Carrillo Represented By Stuart R Simone Kahlil J McAlpin
Trustee(s):
Carolyn A Dye (TR) Represented By Christian T Kim James A Dumas Jr
11:00 AM
Adv#: 2:17-01551 Wyndham Vacation Resorts, Inc. v. Martin
Docket 1
- NONE LISTED -
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C Vanderhoof
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
11:00 AM
Adv#: 2:17-01379 Pratt et al v. Henninger-Quackenbush
False Representation, Actual Fraud, Dischargeability, Fraud
as Fiduciary, Embezzlement, Larceny, Other Actions that Would Have Been Brought in State Court if Unrelated to Bankruptcy
fr. 10/03/17, 11/17/17
Docket 1
Tentative Ruling for 1/9/18:
Dismiss this adversary proceeding for failure to prosecute. Appearances are not required. This court will prepare the dismissal order.
As of the preparation of this tentative ruling, the mandatory status report that was supposed to be filed two weeks prior to this status conference is not reflected on the docket.
Furthermore, at the hearing on 11/7/17, the parties stated that they had reached a settlement of their disputes, but no party in interest has requested that this court approve any settlement or otherwise memorialized the fact of any settlement. Counsel for the debtor suggested that no such act was required. This court expresses no view on that issue, except to note that this implies that the lack of prosecution might be because this matter has been resolved.
In addition, the debtor's main bankruptcy case was closed on 9/19/17 (2:17-bk-15002-NB), and nondischargeability proceedings are not mooted by closure, the fact that enough time has passed for this case to be closed reinforces this court's conclusion that this matter has been pending for long enough that it should have been prosecuted by now, and the debtor has an interest in getting on with her "fresh start" post-bankruptcy. Cf. generally In re Carraher, 971 F.2d 327, 328 (9th Cir. 1992) (in analogous context of dismissal of main case, bankruptcy court should consider economy, convenience, fairness and comity in deciding whether to retain jurisdiction over adversary proceeding).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 11/7/17:
Appearances required. There is no tentative ruling, but the plaintiff should be prepared to address: (i) the outstanding deficiencies with respect to service of the summons and complaint; (ii) what efforts, if any, plaintiff has undertaken to retain the services of an attorney; and (iii) whether he intends to prosecute this matter.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
Appearances required. There is no tentative ruling, but the plaintiff should be prepared to address why the summons and complaint have not been served, and whether he will prosecute this matter.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Stacy Leigh Henninger- Represented By Leslie A Cohen
Defendant(s):
Stacy Leigh Henninger- Pro Se
11:00 AM
Plaintiff(s):
Scott Pratt Pro Se
QAS Productiins Inc - A Nevada Pro Se
Trustee(s):
Sam S Leslie (TR) Pro Se
11:00 AM
Adv#: 2:17-01203 Timothy J. Yoo, Chapter 7 Trustee v. Saldana et al
Cont'd Status Conference re: Complaint for: (1) Avoidance of Fraudulent Transfer; (2) Recovery of Avoided Transfer;
Declaratory Relief; and (4) Turnover of Property fr. 5/23/17, 8/22/17, 11/17/17
Docket 1
Debtor(s):
Ramiro Saldana Represented By Jeffrey N Wishman J Scott Bovitz
Defendant(s):
Ramiro Saldana Represented By Jeffrey N Wishman
Ramon Saldana Represented By J Scott Bovitz
Plaintiff(s):
Timothy J. Yoo, Chapter 7 Trustee Represented By
Todd M Arnold
Trustee(s):
Timothy Yoo (TR) Represented By Todd M Arnold
1:00 PM
Docket 111
Continue to 1/23/18 at 1:00 p.m. to address the following issues. Appearances are not required on 1/9/18.
Reasons: The motion refers to an Exhibit A that is missing from the attachments. Further, the motion was not filed using mandatory Local Form F 4001-2, which would reveal whether there are certain unusual or standard provisions, e.g., if the loan is secured (by vehicle or other collateral) or whether it is supposed to be an unsecured loan (perhaps with administrative priority over other claims).
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
1:00 PM
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
Movant(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Silvana Marie LaMay Represented By Onyinye N Anyama
1:00 PM
Docket 131
Grant. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rescue One Ambulance Represented By Michael Jay Berger
Movant(s):
Rescue One Ambulance Represented By Michael Jay Berger
1:00 PM
Docket 866
Grant. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
AWTR Liquidation Inc Represented By Brian L Davidoff Claire E Shin
C John M Melissinos Jeffrey A Krieger Courtney E Norton Danielle A Pham
Movant(s):
Solution Trust, as Trustee of the Represented By Gary E Klausner Lindsey L Smith
1:00 PM
Docket 1468
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address the issues raised in the opposition papers (dkt. 1478, 1479) and the reply by the defendant Mayer Hoffman McCann P.C. (dkt. 1481).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Movant(s):
Mayer Hoffman McCann P.C. Represented By Michael M Lauter Kyle J Mathews
1:00 PM
Docket 0
Tentative Ruling for 1/9/18:
This court has reviewed the debtor's last status report (dkt. 1465, filed 11/28/17). The parties should be prepared to provide an oral status report regarding any additional developments that are appropriate for this post- confirmation status conference. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Continue to 1/9/18 at 1:00 p.m. in view of the debtor's status report (dkt. 1465) and to be heard concurrently with Motion to Approve Compromise Under Rule 9019 (dkt. 1468). Appearances are not required on 12/12/17.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 9/12/17:
Continue to 12/12/17 at 2:00 p.m. in view of the debtor's status report (dkt. 1456). See also dkt. 1454 (order continuing 8/8/17 Status Conference to 9/12/17). Appearances are not required on 9/12/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 8/8/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Has the debtor been making all payments under the plan that went effective on April 5, 2017 (dkt. 1408)? Is this case ready for a final decree and closing?
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/23/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Ms. Cohen's motion for reconsideration (dkt. 1421) and related papers (dkt. 1423, 1431, 1434, 1436). The tentative ruling is to deny the motion as to the approximately $67,128 paid into this court's registry and as to all but $20,000 of the approximately $32,872 held by Ms. Cohen's current counsel. In addition, the tentative ruling is to require Ms. Cohen's current counsel to continue to hold that $20,000 pending a further order regarding the proper person(s) to whom those funds should be distributed.
Reasons: The point of coervice sanctions is to coerce compliance, and up until that compliance happened the sanctions had not had their intended
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coercive effect. In addition, there is a "moral hazard" problem (both for Ms. Cohen's future behavior and for any other parties involved in bankruptcy cases) if this court were to reduce coercive sanctions after (very belated) compliance. The motion asserts that Ms. Cohen has suffered and will suffer various hardships due to lack of funds; but she always had the ability to mitigate those hardships by complying with this court's orders (and her own prior agreements), thereby stopping the accumulation of coercive sanctions.
Nevertheless, as the motion points out, Ms. Cohen's counsel had to "negotiate, review and draft the documents needed to comply with the Confirmation Order" (dkt. 1421, p.4:12-14), which means that even after she was prepared to comply with this court's orders there was a period of time when the coercive sanctions were continuing to accrue at a rate of $500 per day. Although Ms. Cohen has not presented any evidence regarding how many days this took (or whether her efforts at compliance were always genuine or diligent), this court is familiar with the progress of documentation based on the hearings that were held before this court. Giving Ms. Cohen the benefit of the doubt that the documentation took 40 days after she was diligently committed to compliance, the tentative ruling is that as a matter of discretion the coercive sanctions will be reduced by $20,000.
Proposed order: Ms. Cohen is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. In addition, Ms. Cohen is directed to lodge a proposed order on Local Form F 7067- 1.1.ORDER.REGISTRY.FUND.
Effect of attorney liens (dkt. 1423, 1431)
To the extent that Ms. Cohen's former counsel (Mr. Shensen, Mr. Aron, and their firms) request to be paid immediately - either out of the $20,000 referenced in section "(1)(a)" of this tentative ruling or out of any other distributions that might be made to Ms. Cohen - the tentative ruling is that those matters are not properly before this court. First, those request should be the subject of their own proceedings, rather than simply being included in oppositions to Ms. Cohen's motion for reconsideration.
Second, to the extent, if any, that those attorneys are seeking declaratory or injunctive relief, those matters presumably would require an adversary proceeding. See Rule 7001 (Fed. R. Bankr. P.).
Third, presumably any such proceeding would need to join all other known potential claimants, including not just each other but also the IRS/FTB,
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the bankruptcy estate (dkt. 1434), and perhaps Ms. Cohen's other former or present counsel and anyone who has asserted liens that may apply against her distributions, such as persons who have filed judgment liens or conducted a judgment debtor exam.
The foregoing is based solely on the filed papers to date. This court has not researched the mechanisms for enforcing attorney liens, and does not intend for this tentative ruling to supplant or prejudge any such mechanisms.
Adversary proceedings. The parties should be prepared to address whether Ms. Cohen is moving forward with prosecuting the various adversary proceedings that have been assigned to her under the (now effective) chapter 11 plan. If not, what remedies are appropriate?
Motion to employ professionals (1429). The tentative ruling is to grant the debtor's motion to employ professionals for the benefit of the estate.
Proposed order: The debtor is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Compensatory civil sanctions (adv.p. 2:16-ap-01046-NB, dkt. 90, 97, 118, 126, 147), and attorney liens (dkt. 1423, 1431, 1433). The parties should be prepared to address the issue of which party should receive the monthly rent and the security deposit that Ms. Cohen would otherwise receive pursuant to the plan. As stated above in section "(1)(b)" of this tentative ruling, this court has concerns about whether this issue has been properly presented for determination at this time.
Deadlines/dates. This case was filed on 6/25/13. The tentative ruling is to set a continued post-confirmation status conference for 7/11/17 at 2:00 p.m., but the parties should be prepared to address at the hearing the necessity of scheduling a continued hearing sooner or later than that date, and any other deadlines in this case.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saeed Cohen Represented By
1:00 PM
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
1:00 PM
Docket 1
Tentative Ruling for 1/9/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement: At the hearing on 12/5/17, this court cautioned debtors' counsel about the possibility of dismissing this case for failure to prosecute. Although the debtors have reached an agreement with Sheffield Financial (dkt. 51, 53), it does not appear that the debtors have reached agreements with any of their other secured creditors (see dkt. 45, Ex.H, at PDF p.14, Endnotes 2B-2D), despite this case having been pending for nearly eight months. As a result, counsel for the debtor should address why this court should not dismiss this case.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: If this case is not dismissed, this court will set a hard deadline for the debtors to negotiate agreements with their secured creditors regarding plan treatment.
Continued status conference: If this case is not dismissed, this court will set a date for a continued status conference.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement: The tentative ruling is not to impose at this time a deadline for filing amended documents, but to caution debtor's counsel that if this case is not adequately prosecuted then it may be dismissed.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: This court anticipates that at the continued status conference (set forth below) this court will set a new, hard deadline shortly thereafter for filing revised drafts of the plan and disclosure statement.
Continued status conference: 1/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
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Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement (dkt. 44, 45). There is a blank page in the plan that should be deleted (dkt. 44 at PDF p.11).
Exhibit F (dkt. 45 at PDF p.12) appears to contain some errors: line "1" lists general unsecured claims of $64,716, the source for which is listed as dkt.10, plus another $7,970.39 in line "8" from a "Continuation Sheet"; but dkt.10 is not a listing of creditors (it is a notice of commencement of this case and the meeting of creditors), the only bankruptcy Schedule E/F that appears on the docket (dkt.1) lists general unsecured claims of $64,672.60, and there is no "Continuation Sheet" attached.
The debtor discloses (dkt. 45, Ex.H, at PDF p.14, Endnotes 2B-2E) that agreements have yet to be reached with various secured creditors; and therefore it appears appropriate to defer any solicitation of votes. The debtor's counsel should be prepared to address how long it is expected to take before agreements are reached or unresolved disputes are ready for presentation to this court for decision.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: 11/14/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions per the above tentative ruling and any matters discussed at the status conference.
Continued status conference: 12/5/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
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Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Orders. The debtors' counsel should be prepared to address why certain orders have not been lodged, namely, (i) the order on the debtors' motion to value their personal property (dkt. 27), which motion was granted on 7/11/17, and (ii) the order on the debtors' application to employ general bankruptcy counsel (dkt. 22).
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/3/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Grant the budget motion and continue the status conference as set forth below. Appearances are not required on 6/20/17.
Current issues.
Budget motion. This court mistakenly ruled at the status conference on 6/13/17 that the budget motion would be granted on a final basis, not realizing that the 6/13/17 hearing on that motion had been vacated because an amended motion had been filed and set for hearing on this 6/20/17 date. See dkt. 16, 20. Notwithstanding that error, no opposition has been filed to the budget motion, and the tentative ruling is to issue an order
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after this hearing granting the amended motion on a final basis (the debtor is directed to lodge a proposed order within seven days after this hearing date).
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (dkt. 23) - to be served by 8/20/17
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/22/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 6/13/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves
but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion. The debtors' amended budget motion filed on 6/1/17 (dkt. 20) appears to have only partially cured the defects pointed out by the U.S. Trustee in its opposition (dkt. 19) to the initial budget motion (dkt. 16). First, the debtor and/or spouse apparently has income from a property or business but has failed to provide a breakdown of gross receipts, ordinary and necessary business expenses, and calculation of the resulting monthly net income. See dkt. 20 at PDF p.7 (bankruptcy schedule "I" line 8a).
Second, the budget motion includes both (a) bankruptcy schedules "I" and "J" and (b) a spreadsheet showing what appears to be largely or entirely duplicative data. Which one controls (or are both the same)?
Third, the notice of the amended motion incorrectly provides that
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oppositions are due 14 days prior to the hearing on the motion, although the motion was set on shortened notice pursuant to this court's posted Procedures. For this reason, this court intends to hear oppositions to the amended budget motion at the hearing on 6/13/17.
The tentative ruling is to grant the budget motion on an interim basis, based on the proposed budget spreadsheet (not bankruptcy schedules "I" and "J"), with a deadline of 6/14/17 to file a supplemental declaration providing a thorough breakdown of gross revenues, expenses and calculation of net income for each property/business, and with a continued hearing on 6/20/17 at 1:00 p.m.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/20/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Steve O Chong Represented By Lionel E Giron Kevin Tang
Joint Debtor(s):
Edwina Theresa Chong Represented By Lionel E Giron Kevin Tang
1:00 PM
1:00 PM
Docket 1
Tentative Ruling for 1/9/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. At the 12/19/17 status conference this court continued the hearing at the debtor's request for more time to engage counsel and to file missing documents (see Order Setting Deadlines, dkt. 11). The documents were timely filed - but they did not appear on the docket until the following week due to holiday court closures, and this case was erroneously dismissed with a bar to refiling (see Dismissal Order, dkt. 13). The Dismissal Order was vacated once the documents appeared on the docket (see dkt. 18). In the midst of correcting these and other deficiencies, it appears that the debtor neglected to comply with this court's Order Setting Principal Status Conference and Procedures (dkt. 2, the "Status Order"), which directed the debtor to (a) file a Case Status Report using Local Form F 2081- 1.1.C11.STATUS.RPT (originally due 12/5/17), (b) serve that status report on the United States Trustee and any person who requests a copy, with a proof of service, and (c) serve the Status Order itself on all parties in interest, and file a proof of service. There is no Tentative Ruling, but the parties should be prepared to address these issues and present a case status report orally.
Deadlines/dates. This case was filed on 11/29/17.
Bar date: 3/6/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement: The court will set a deadline and procedures at a later time.
Continued status conference: 1/30/18 at 1:00 p.m., brief status report due 1/16/18.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Appearances required. The tentative ruling is to dismiss this case with a 180 day bar against being a debtor in bankruptcy for willful failure to appear in proper prosecution of this case. 11 U.S.C. 109(g)(1). The deficiencies noted by the Clerk's office when the petition was filed (dkt. 1) have not been cured, and the debtor did not serve this court's order setting this status conference (dkt. 2) as directed therein.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tarsin Mobile Inc Represented By David L. Kagel
1:00 PM
[Proof of Claim No. 2] fr. 12/19/17
Docket 105
Tentative Ruling for 1/9/18:
Continue to 2/27/18 at 1:00 p.m., pursuant to the debtor's request (Orantes Decl., dkt. 114, para.12) to provide the debtor with an opportunity to negotiate with the claim holder. In addition, based on that declaration this court is persuaded, subject to any interim and final fee applications, that it is appropriate for counsel to bill (a) for the claim objection and (b) for the time spent preparing that declaration. Appearances are not required on 1/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Continue to 1/9/18 at 1:00 p.m. to address the following issues. Appearances are not required on 12/19/17.
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative
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expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%,
your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it is unclear whether the debtor has more than minimal assets, so it is possible that claim objections do nothing but deplete whatever minimal recovery creditors might otherwise receive. In other words, counsel for the debtor may be charging the bankruptcy estate (and the debtor) more than it would cost simply to pay the projected distribution to the claim.
No later than 12/29/17, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection (so as not to further waste the time of this Bankruptcy Court, the claimant, and any other parties in interest in addressing this matter).
Counsel is not expected to charge any fees on this matter. This Bankruptcy Court presumes that counsel will not charge any fees on this matter (including all past, present and future work related to this claim objection) and will return any fees that might be (or might have already been) awarded relative to this matter, without prejudice to renewing any application for fees if at a later time it appears that such fees are warranted based on a cost/benefit analysis supported by adequate evidence. If the foregoing presumption is incorrect, then counsel must appear at the continued hearing and argue why fees are appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes
Movant(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Giovanni Orantes Mike Montes Mike Montes
2:00 PM
Docket 1
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status
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conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
2:00 PM
Docket 1
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
8:30 AM
Docket 21
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following issues:
FRBP 7001
Hilltop Colony Homeowners Assoc. ("Hilltop") contends that an adversary proceeding is required pursuant to Rule 7001 (Fed. R. Bankr. P.), but this argument has been mooted by the recent amendment to Rule 3012 ("a request to determine the amount of a secured claim may be made by motion") (emphasis added; as amended 12/1/17). Additionally, even under the prior version of Rule 3012, Judge Bason followed the predominent view adopted by other courts and Collier on Bankruptcy that no adversary proceeding is required.
Hilltop contends (dkt. 26, p.2:25-3:1) that it is "critical" that it have the procedural protections of an adversary proceeding, so as to be able to impeach the debtor and her witnesses. But discovery, cross examination and other tools generally are available in contested matters. See Rule 9014(c).
This court has discretion whether to incorporate any specific rules from adversary proceedings (id.), but Hilltop has not established any reason why the ordinary procedures applicable to contested matters would be inadequate.
Res Judicata
Judge Bason is not persuaded by Hilltop's arguments regarding res judicata. There is nothing in the record to show that Judge Zurzolo ruled on the merits. Rather, based on this court's review of the audio recording from the prior hearing, his decision avoided making any substantive determinations and denied the motion on procedural grounds.
Discovery and evidentiary Hearing
Principal residence issue
8:30 AM
Hilltop states that it intends to challenge the debtor's assertion that the property is her "principal" residence. First, that issue appears to be irrelevant to the debtor's motion under 11 U.S.C. 506. A debtor generally has greater, not less, ability to modify the rights of lienholders under section 506 and a chapter 13 plan if the property is not a principal residence. See 11 U.S.C.
1322(b)(2); In re Zimmer, 313 F.3d 1220 (9th Cir. 2002).
Second, although the use of the property as a residence could matter if the debtor were seeking avoidance of the lien because it allegedly impairs her homestead exemption (11 U.S.C. 522(f)), that is not what the current motion does. The debtor's motion seeks to value the property and (eventually) avoid the lien under 11 U.S.C. 506, not 522(f), so exemptions are irrelevant. (The debtor confuses the issue because her declaration, dkt. 21, para.7, states that if Hilltop's lien is not entirely unsecured that lien impairs her homestead; but this court interprets that statement as merely a preservation of rights to bring a motion under section 522(f) in the event that the current motion under section 506 fails.)
In sum, the principal residence issue appears to be irrelevant at the present time. If it becomes relevant at a later time then the parties can address it.
Valuation
The parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Yumi Chan Represented By
Darren G Smith
Movant(s):
Yumi Chan Represented By
Darren G Smith Darren G Smith
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 27
Grant. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jorge Tovar Represented By
Luis G Torres
Movant(s):
Jorge Tovar Represented By
Luis G Torres
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following issues:
Valuation dispute
The parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
Settlement
The parties should address whether this court should continue this matter to provide the parties with an opportunity to engage in settlement negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anna Kusnier Represented By
8:30 AM
Movant(s):
Julie J Villalobos
Anna Kusnier Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 19
Grant. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Valerie Campbell Represented By Guy R Bayley
Movant(s):
Valerie Campbell Represented By Guy R Bayley Guy R Bayley
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 15
Grant. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Valerie Campbell Represented By Guy R Bayley
Movant(s):
Valerie Campbell Represented By Guy R Bayley Guy R Bayley
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 96
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee and the debtor (dkt.
96, 97).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Evelyn Yanira Padilla Represented By Matthew D Resnik Kevin T Simon
S Renee Sawyer Blume
Movant(s):
Kathy A Dockery (TR) Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 72
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 73).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Walker Kerr Represented By Thomas B Ure
Movant(s):
Michael Walker Kerr Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 34
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kevin Milan Williams Represented By Scott Kosner
Movant(s):
Kevin Milan Williams Represented By Scott Kosner
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 85
Appearances required. This matter was set for hearing based on the Chapter 13 Trustee's objection (dkt. 89) that, among other things, "it is not clear if all lienholders have agreed to such a sale." One lienholder (apparently the senior lienholder who will be paid in full) has filed a conditional non-opposition (dkt. 96), but what about the other lienholders? The motion does not request any sale free and clear of liens under 11 U.S.C. 363(f), nor does the motion address the elements of that statute. Does the debtor intend to amend the motion to seek such relief?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Donnicus L Cook Represented By Vernon R Yancy
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 17
Deny (without prejudice). Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Reasons:
Service
The motion papers were not served: to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment of law (FRBP 7004(b)(3)), at an address that appears to be reasonably calculated to reach the officer (e.g., corporate headquarters). Note: Judge Bason does not require that a specific individual be named -- "Attn: Officer or Managing/General Agent" is sufficient.
Valuation
The Kelly Blue Book valuation filed in support of the motion (Exhibit 2) lists a "trade in" value range of $3,160 - $4,115 with an average of $3,638.
First, a "trade in" value is not the "replacement value" that "a retail merchant would charge" the debtor within the meaning of 11 U.S.C. 506(a)(2). Second, the debtor seeks a valuation even below the lowest range of trade in values:
$3,135.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Paige Lynne Cross Represented By Kahlil J McAlpin
Movant(s):
Paige Lynne Cross Represented By Kahlil J McAlpin
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 22
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether sufficient cause exists to vacate the dismissal order (dkt.20).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Melvin Blackwell Represented By Ronda R Dixon
Movant(s):
Melvin Blackwell Represented By Ronda R Dixon
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
or Prejudice to Priority Claim of the Internal Revenue Service
Docket 40
Grant. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marco Pacheco Represented By Devin Sawdayi
Movant(s):
Marco Pacheco Represented By Devin Sawdayi
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Hrg re: Objection to Claim Number 4 by Claimant
American InfoSource LP as agent for Midland Funding LLC.
Docket 156
Continue to 2/8/18 at 8:30 a.m., subject to the conditions set forth below, or deny if the debtor cannot meet those conditions. Appearances are not required on 1/11/18.
Option for continued hearing date
This court has selected a continued hearing date that is conditioned on the debtor (a) serving a copy of this tentative ruling on the claimant no later than 1/15/18, (b) serving an amended claim objection addressing the issues described below no later than the same date (which should be possible if, as the debtor implies, she already has the missing documents), and (c) filing a proof of service no later than 1/18/18.
Alternatively, the debtor must lodge a proposed order denying this claim objection (without prejudice) within seven days after this hearing, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Key documents reviewed: debtor's claim objection (dkt. 156); amended claim (no. 4-2); debtor's reply (dkt. 160).
Reasons for conditional continuance
As this court has explained before, the debtor has the burden of proof in asserting a defense of the statute of limitations. See dkt. 141 and memorandum decision referenced therein. The debtor now asserts that, although she apparently has no records related to this claimant, she and her husband stopped paying other creditors around December of 2008 and she believes that they stopped paying this claimant as well. She declares, "[w]e stopped making payments on all of our credit cards and stopped making
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payments at that time." Dkt. 156, p.6:12-13 (emphasis added).
The debtor's memory from several years ago is not normally sufficient to overcome the claimant's records (as this court has explained before, her remedy is to supplement her memory with her own written records or by seeking discovery, if appropriate). In this instance, however, a combination of things might be sufficient, if supplemented as decribed below, to shift the burden back to the claimant.
That combination of things is:
the original proof of claim includes a summary of its business records, not a monthly statement that covers the alleged date of the last payment, and although the summary is sufficient as against the debtor's memory, she allegedly has more evidence (as described below);
the amended proof of claim includes a monthly statement for the applicable month but the debtor's name has been redacted (that would not matter, because even without a monthly statement the debtor's memory is not enough to overcome the prima facie validity of the proof of claim, not to mention the claimant's written business records; but again the debtor alleges that she has more evidence); and
the debtor asserts that "I obtained a copy of my credit report" and that report "did not include any information related to an account with 'Chase Bank USA, NA' which Creditor asserts was the 'Previous Creditor.'" Dkt. 156, pp. 6:14-15 & 7:17-18. (This court notes that the debtor's only claim objection is the statute of limitations - she does not argue that there was no debt owed by her in the first place.) There are at least three problems with the debtor's reliance on this last item "(c)".
First, the debtor fails to provide a (redacted) copy of the credit report. The debtor's hearsay summary of that report is insufficient to shift the burden to the claimant to show the lack of a statute of limitations defense.
Second, the debtor tacitly admits that she and her husband were both involved in credit transactions for which she is liable, but she only refers to "my" credit report, not his. The claimant's business records show that someone made a payment on "06/05/2009" (see dkt. 156, p.6:10), so the debtor's alleged credit report showing that she did not make a payment is insufficient to overcome the creditor's evidence that a payment was made. (The debtor at times refers to "reports" - plural - which implies that she already has her husband's credit report. But if the debtor does not have her husband's credit report, and cannot obtain it, then she can seek discovery if
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she truly believes that neither she nor her husband made the payment that the claimant's record shows was made.)
Third, the debtor has brought the identical claim objection to three claims, so she is suggesting that three separate proofs of claim coincidentally made the same mistake of reflecting payments that were not actually made. This court assumes without deciding that a credit report plus the debtor's memory would outweigh the evidentiary effect of a single proof of claim (unsupported by a monthly statement showing the debtor's name). But it is implausible that three separate proofs of claim signed under penalty of perjury, supported by three separate sets of business records, would all make the same mistake of reflecting payments that were never made. It is unclear if there is any explanation for this alleged coincidence, but perhaps the debtor can offer one. See generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face") (citation omitted, emphasis added). See also Rule 9014(c) (Fed. R. Bankr. P.) (rules applicable to complaints can apply to contested matters).
The bottom line is that the debtor has the burden to show a statute of
limitations defense, and her hearsay, partial, and implausible evidence is inadequate to shift the burden to the claimant to show the lack of such a defense. As this court has explained before, the debtor must meet her burden of proof even absent a written response by the claimant, especially because it generally costs more for the claimant to respond to unmeritorious claim objections than the claim is worth. See Case No. 2:13-bk-15745-NB, Dkt. 134, p.15.
Caveats
By way of background this court notes that the debtor's case has been dismissed due to the debtor's failure to turn over tax refunds of over $17,000 (despite numerous notifications that she was required to do so). Now she hopes that if she can reduce her claims and pay an increased dividend, or even pay her creditors in full, then she can have the dismissal vacated and obtain her chapter 13 discharge.
First, this tentative ruling should not be read to suggest that if the debtor files an amended claim objection satisfying the conditions described above that will necessarily result in disallowance of the claim. For example, the claimant could raise additional responses, or whatever amended claim
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objection the debtor files could raise issues that this court has not yet anticipated.
Second, this tentative ruling should not be read to imply that, even if this claim and other claims are disallowed and the debtor pays all remaining claims in full, the dismissal of the debtor's case will be vacated. This court has often expressed concerns about the "moral hazard" of establishing a practice of excusing a debtor's failure to turn over tax refunds - which is essentially the theft of funds that belong to the estate - if the only condition is that the debtor pays back the funds. That is essentially an incentive to engage in such theft because there is no penalty for getting caught except return of the funds.
Third, this tentative ruling should not be read as an assurance that whatever the debtor's counsel might charge the bankruptcy estate will be justified by a cost/benefit analysis. Of course, if the debtor can afford to pay counsel's fees and also pay 100% of all allowed claims then counsel's fees will meet the cost/benefit test; but if the debtor proposes to pay her creditors less than 100%, in order to pay her attorney to overcome her theft of funds from the estate, then it will be more difficult to show that the expenditure of those funds is warranted from a cost/benefit perspective.
Conclusion
The tentative ruling is that the debtor can choose to file and serve an amended claim objection, objecting to claim no. 4-2, if she can provide (redacted) credit report(s) for herself and her husband and an argument and/or evidence for why it is plausible that three proofs of claim filed under penalty of perjury and supported by business records would all be incorrect about the dates of the last payments. If the debtor does not file and serve such amended documents, then the tentative ruling is that she must, within seven days of this hearing, lodge a proposed order denying her claim objection (without prejudice).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Jacqueline Beoglyan Represented By Thomas B Ure
Movant(s):
Jacqueline Beoglyan Represented By Thomas B Ure Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Hrg re: Objection to Claim Number 3 by Claimant
American InfoSource LP as agent for Midland Funding LLC
Docket 155
Continue to 2/8/18 at 8:30 a.m., subject to the same conditions and requirements set forth for calendar no. 13 (1/11/18 at 8:30 a.m.), or deny if the debtor cannot meet those conditions. Appearances are not required on 1/11/18.
Key documents reviewed: debtor's claim objection (dkt. 155); claim (no. 3-1).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jacqueline Beoglyan Represented By Thomas B Ure
Movant(s):
Jacqueline Beoglyan Represented By Thomas B Ure Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
8:30 AM
Hrg re: Objection to Claim Number 7 by Claimant Capital One Bank (USA), N.A. by American Infosource LP as agent
Docket 154
Continue to 2/8/18 at 8:30 a.m., subject to the same conditions and requirements set forth for calendar no. 13 (1/11/18 at 8:30 a.m.), or deny if the debtor cannot meet those conditions. Appearances are not required on 1/11/18.
Key documents reviewed: amended claim (no. 7-2), debtor's reply (dkt. 154).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jacqueline Beoglyan Represented By Thomas B Ure
Movant(s):
Jacqueline Beoglyan Represented By Thomas B Ure Thomas B Ure
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 61
Debtor(s):
Jay C Shin Represented By
Thomas B Ure
Movant(s):
Jay C Shin Represented By
Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 31
Grant motion insofar as it seeks to reclassify $2,664.61 of the IRS's asserted priority unsecured claim as a general unsecured claim for taxes assessed in 2013. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Omar T Proano Represented By Hector Vega
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 28
Continue to 2/8/18 at 8:30 a.m. to address the following issues. Appearances are not required on 1/11/18.
Reasons:
Service
The claim objection (dkt. 28) was not served on the claimant at the address for notices listed in the proof of claim.
The claim objection fails to include a sufficient cost/benefit analysis Judge Bason's posted Procedures (available at
www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that the cost/benefit analysis might be favorable to bringing this objection (see dkt. 20, p.2), but that does not obviate the need to provide that analysis. No later than 1/25/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection (so as not to further waste the time of this Bankruptcy Court, the claimant, and any other parties in interest in
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addressing this matter).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles W Martin Represented By Sundee M Teeple Craig K Streed Cynthia L Gibson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 24
Continue to 2/8/18 at 8:30 a.m. to address the following issues. Appearances are not required on 1/11/18.
Reasons:
Service
The claim objection (dkt. 24, 26) was not served on the claimant at the address for notices listed in the proof of claim.
The claim objection fails to include a sufficient cost/benefit analysis Judge Bason's posted Procedures (available at
www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that the cost/benefit analysis might be favorable to bringing this objection (see dkt. 20, p.2), but that does not obviate the need to provide that analysis. No later than 1/25/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection (so as not to further waste the time of this Bankruptcy Court, the claimant, and any other parties in interest in
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addressing this matter).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles W Martin Represented By Sundee M Teeple Craig K Streed Cynthia L Gibson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 31
Deny. Appearances are not required.
Proposed order: Creditor Cardlock Fuels System, Inc. ("Cardlock") is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Key documents reviewed (in addition to motion papers): debtor's motion (dkt. 31); Cardlock's Opposition (dkt. 33).
Reasons for denial:
Facts
Neither party provides any copy of any levying documents, or any declarations to support their allegations. Nevertheless, the following facts appear to be undisputed.
Prepetition, on February 21, 2017, at the request of judgment creditor Cardlock, The Los Angeles County Sheriff's Department ("Sheriff") served a Writ of Execution and notice of levy on Wells Fargo Bank, NA ("Bank") where the debtor held a bank account. On February 28, 2017 the debtor filed her bankruptcy petition. Postpetition, on March 2, 2017, Bank delivered to Sheriff
$32,775 (the "Funds"). See dkt. 31, p.3:1-12 and dkt. 33, pp.1:25-2:8.
Legal authority
Neither party cites any authority for their principal arguments. The authorities they do cite appear to be mostly the wrong statutes and irrelevant decisions.
The debtor asserts that the Funds are property of the estate under the general principles of 11 U.S.C. 541, without any citation to California law defining when ownership of funds is transferred away from the
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depositor/debtor. See In re Hernandez, 483 B.R. 713, 720 (9th Cir. BAP 2012) ("Whether a debtor's interest constitutes 'property of the estate' is a federal question to be decided by federal law [but] the nature and extent of the debtor's interest in property must be determined by nonbankruptcy law.") (citations and internal quotation marks omitted, emphasis added).
The debtor next argues that Cardlock and Sheriff should be ordered to return the Funds to the debtor "under 11 U.S.C. [section] 105" (dkt. 31, p.4:6), which is the general authorization for the Bankruptcy Court to issue any order or judgment that is "necessary or appropriate to carry out the provisions of this title." The debtor ignores 11 U.S.C. 542 and 543, which are the specific statutory provisions governing turnover to the estate of property of the estate.
Cardlock argues, also without citation, that when the Funds "were levied" they "ceased being the Debtor's property" - Cardlock does not specify whether the time when the Funds "were levied" means when the writ and notice were served on Bank (prepetition), or when the Funds were delivered by Bank to Sheriff (postpetition). Dkt. 33, p.2:24-25. Cardlock may mean the latter because in the next sentence it states that when the Funds "were delivered from [Bank] to [Sheriff], title to the property was vested in creditor [Cardlock]" (dkt. 33, pp.2:25-3:4) based on a decision from the Seventh Circuit involving escrowed funds. See Fed. Deposit Ins. Corp. v. Knostman, 966 F.2d 1133, 1142 (7th Cir. 1992). Cardlock does not cite any California law or any decision applying California law, nor any decision involving a levy by a sheriff (as opposed to escrowed funds).
This court declines to perform the parties' research for them.
Nevertheless, this court must determine based on general principles and who has what burden whether to grant or deny the debtor's motion. Accordingly, this court has performed some brief research on the following issues.
The debtor had an interest in the Funds as of the petition date Although this court's brief research suggests that California law is not
entirely clear, it appears that when a bank has not yet turned over funds to the sheriff prepetition, the levying creditor only has a lien not an ownership interest in the funds. See Hernandez, 483 B.R. 713, 721 (under Cal. Code Civ. P. 700.140(a)&(e), creditor obtains execution lien on amounts in deposit account at time of service on financial institution, and that lien terminates when the funds are paid to the levying officer, which implies that the debtor's interest is transferred at the latter time). (The statute was amended after
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Hernandez was decided, including designating paragraph "(e)" as paragraph "(f)," but the amendments do not appear to be material.)
void
Any postpetition termination of the debtor's interest in the Funds is
Assuming that Cardlock is correct that the transfer from Bank to Sheriff
terminates the debtor's interest in the Funds under California law, Cardlock has not suggested any reason why that transfer would not have violated the automatic stay of 11 U.S.C. 362(a). Therefore any such transfer apparently is void ab initio. See, e.g., In re Gruntz, 202 F.3d 1074 (9th Cir. 2000), and In re Schwartz, 954 F.2d 569 (9th Cir. 1992). (The debtor asserts, dkt. 31, p.3, n.1, that because the transfer from Bank to Sheriff occurred postpetition "the Debtor most likely has grounds to avoid the transfer of the Funds pursuant to 11 U.S.C. 549." This court expresses no opinion on that issue.)
The debtor has neither sought, nor established a basis for, turnover The debtor cannot use 11 U.S.C. 105 to evade or enlarge the specific
statutory provisions that govern turnover: 11 U.S.C. 542 and 543. So one of those latter statutes governs - this court does not decide which one (i.e., whether Bank and/or Sheriff qualify as a "custodian" under 11 U.S.C. 101(11) and 543), because for present purposes the issues are the same under each section.
This court also assumes without deciding that the debtor would have standing to seek turnover under 11 U.S.C. 542 or 543 (or, for that matter, standing to seek avoidance under 11 U.S.C. 544-549 and recovery under 550, although as Cardlock points out any such avoidance actions presumably would require an adversary proceeding under Rule 7001, Fed. R. Bankr. P.). Compare In re Cohen, 305 B.R. 886, 891-900 (9th Cir. BAP 2004) (chapter 13 debtor has standing to bring avoidance actions).
So far so good for the debtor's position. But it is not enough for the debtor to show that someone is in possession of property in which the bankruptcy estate has an interest. The debtor also must establish that any persons holding an interest in that property, such as Cardlock, will have their interests adequately protected. See 11 U.S.C. 363(e) (court "shall" provide adequate protection of person's interest in property proposed to be used, upon request); 11 U.S.C. 542(a) (turnover only applies to property that trustee may "use, sell, or lease" or that debtor may exempt, i.e., which is subject to
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section 363(e)); 11 U.S.C. 543(c)(1) (court shall "protect all entities" to which custodian of property has become obligated).
The debtor has not shown that simply turning over the Funds to the debtor would adequately protect Cardlock, or for that matter that such turnover would be an appropriate use of property of the estate. In sum, the debtor has neither requested relief under the applicable statutory provisions, nor established a basis for such relief.
This court expresses no opinion regarding the remaining arguments raised by Cardlock - e.g., that the debtor lacks "clean hands," or that this case should be converted to chapter 7. It is unnecessary to reach the former issue, and the latter has not been properly presented (in the form of a motion to convert).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Laura Elena Gandarilla Represented By Leonard Pena
Movant(s):
Laura Elena Gandarilla Represented By Leonard Pena Leonard Pena Leonard Pena
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 43
Grant the application for compensation, as reduced by this court's previous order (dkt. 48), without any further reduction as requested in the debtor's opposition (dkt. 50), because of the applicant's evidence that the debtor received a copy of the application and yet did not object to it (until now, very long after the deadline for any objection). To the extent, if any, that this court is persuaded to address the other issues raised in the debtor's opposition (dkt. 50) and the applicant's reply papers (dkt. 57), the parties should be prepared to testify under oath, either at this hearing or, if necessary, at a future hearing. Appearances required.
Proposed order: If this court is not persuaded to depart from this tentative ruling then the applicant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Willie John Riley Pro Se
Movant(s):
Willie John Riley Pro Se
8:30 AM
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
8:30 AM
Docket 50
Debtor(s):
Hin Phan Represented By
Shai S Oved
Movant(s):
FRANCHISE TAX BOARD Represented By Charles Tsai
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 11/2/17, 12/7/17
Docket 57
Tentative Ruling for 1/11/18:
The tentative ruling is that the current motion to dismiss is mooted by the order (dkt. 93) on the FTB's motion to dismiss, and if the Chapter 13 Trustee wishes to request dismissal based on the current posture of this case then that can and should be requested in a new motion to dismiss. Appearances are not required.
There is no tentative ruling, but the parties should be prepared to provide this court with an update regarding the status of their negotiations, and address the issues raised in the papers (including the debtor's latest notice at dkt. 87).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/2/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to provide this court with an update regarding the status of their negotiations, and address the issues raised in the papers.
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hin Phan Represented By
Shai S Oved
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 11/2/17, 12/7/17
Docket 70
Tentative Ruling for 1/11/18:
The tentative ruling is that the current motion to modify is mooted by the order (dkt. 93) on the FTB's motion to dismiss, and if any different modification of the plan is required then that can and should be requested in a new motion to modify. Appearances are not required.
There is no tentative ruling, but the parties should be prepared to provide this court with an update regarding the status of their negotiations, and address the issues raised in the papers (including the debtor's latest notice at dkt. 87).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to provide this court with an update regarding the status of their negotiations, and address the issues raised in the papers (including the debtor's latest notice at dkt. 87).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/2/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to provide this court with an update regarding the status of their negotiations, and address the issues raised in the papers.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hin Phan Represented By
Shai S Oved
Movant(s):
Hin Phan Represented By
Shai S Oved Shai S Oved
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/17/17, 10/5/17, 12/7/17
Docket 106
Tentative Ruling for 1/11/18 (same as for 12/7/17):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). The parties should be prepared to address the status of their negotiations and whether they have been able to resolve their disputes.
Furthermore, at the 8/17/17 hearing on this motion, the creditor was directed to file a declaration no later than 9/21/17 addressing (a) its purported non- payment of this court's prior award of fees and expenses (see order, dkt. 77); its re-calculation and/or verification of the purported shortfall after reviewing the debtor's Objection (dkt. 106) to its response (dkt. 94) to the Chapter 13 Trustee's notice of final cure payment [to the extent not addressed by the creditor's supplemental response at dkt. 115]; and (c) the reasons for its late filing of (i) its response to the notice of final cure and (ii) its response (dkt.
115) to the debtor's Objection. A scheduling order continuing the hearing to 10/5/17 was entered on 8/23/17, memorializing the above (dkt. 116).
Creditor has not filed any such declaration on the docket (as of the date when this tentative ruling has been prepared, over a week after the deadline). Why not?
Should this court issue an order to show cause ("OSC") why sanctions should not be imposed? Should this court entertain a motion by counsel for the debtor for sanctions? At the very least, the late responses and lack of responses appear to be costing the debtor/estate the time and expense for the debtor's attorney to appear in court to address these things.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/17/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's opposition (dkt. 106) to the response to final notice of cure payment filed by HSBC Bank USA, N.A. filed on 6/2/17.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sean David Jones Represented By Thomas B Ure
Movant(s):
Sean David Jones Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
(n) and (w) to modify plan or suspend plan payments fr. 10/5/17, 11/2/17
Docket 123
Tentative Ruling for 1/11/18 (same as for 11/2/17 and 10/5/17): Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 125).
If you do not appear and the matter is not adequately resolved or continued by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Anthony John Nangano Represented By
Matthew D Resnik
Movant(s):
Michael Anthony John Nangano Represented By
Matthew D Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 12/7/17
Docket 99
Tentative Ruling for 1/11/18 (same as for 12/7/17):
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 100).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Joyce Annette Aguebor Represented By Michael F Chekian
Movant(s):
Joyce Annette Aguebor Represented By Michael F Chekian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Plan Payments fr. 12/7/17
Docket 32
Tentative Ruling for 1/11/18 (same as for 12/7/17):
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 34).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Paul John Kay Represented By Stella A Havkin
Movant(s):
Paul John Kay Represented By Stella A Havkin
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
(n) and (w) to modify plan or suspend plan payments fr. 9/14/17, 11/2/17
Docket 41
Tentative Ruling for 1/11/18 (same as for 11/2/17 and 9/14/17): Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 46).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Joel Rodney Mason Represented By Matthew D Resnik
Movant(s):
Joel Rodney Mason Represented By Matthew D Resnik Matthew D Resnik Matthew D Resnik Matthew D Resnik Matthew D Resnik
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 9/14/17, 11/2/17
Docket 43
Debtor(s):
Joel Rodney Mason Represented By Matthew D Resnik
Movant(s):
Joel Rodney Mason Represented By Matthew D Resnik Matthew D Resnik Matthew D Resnik Matthew D Resnik Matthew D Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 12/7/17
Docket 38
Tentative Ruling for 1/11/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 12/7/17 hearing on this matter, this court was persuaded to continue this matter. What is the current status of this matter?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/7/17:
Deny for the reasons stated in the Opposition (dkt. 46). If the debtor wishes to obtain more discovery regarding older records, she can seek such discovery using the normal procedures for doing so (subject to the normal limitations on any discovery). Appearances are not required.
Note: Counsel did not comply with the Local Bankruptcy Rules' requirement to attach a copy of the proof of claim to the objection. Nor did counsel comply with Judge Bason's posted procedures (at www.cacb.uscourts.gov) requiring a cost/benefit analysis for any claim objection (although the nature of the claim, and the provisions of the debtor's latest amended plan, dkt. 37, suggest that the cost/benefit analysis is
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favorable to bringing any meritorious objection). In future, counsel should comply with those requirements.
Proposed order: Creditor National Funding, Inc. is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Xuri Worthing Webb Represented By Eliza Ghanooni
Movant(s):
Xuri Worthing Webb Represented By Eliza Ghanooni Eliza Ghanooni
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 56
Tentative Ruling for 1/9/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issue raised by this court's Order setting the matter for hearing (dkt. 59).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Julius Taurayi Magodo Represented By Matthew D Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
3:00 PM
Docket 184
- NONE LISTED -
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
3:00 PM
Docket 183
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Key documents reviewed (in addition to motion papers): Joseph Barrett's Limited Objection (dkt. 189); Movant's reply (dkt. 190).
Reasons: The motion is granted and the omnibus procedures specified in the motion are approved, except as to the Barrett Claims, which shall be pursued and resolved in the Advocate Capital, Inc, v. Maximum Legal (California) LLP, 2:17-ap-01503-NB adversary proceeding.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By
3:00 PM
Malhar S Pagay James KT Hunter
2:00 PM
Adv#: 2:17-01412 Evanston Insurance Company v. Layfield & Barrett, APC et al
Hrg re: Discovery dispute
Docket 0
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Layfield & Barrett, APC Pro Se
Philip J. Layfield Pro Se
Joseph Barrett Represented By Damion Robinson
Todd D. Wakefield Pro Se
Terry Bailey Pro Se
Plaintiff(s):
Evanston Insurance Company Represented By Michael F Perlis Daniel A Solitro
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
9:00 AM
17-01276 Ehrenberg v Crone et al 17-01289 Rinde et al v Crone et al
17-01309 CKR Global Advisors, Inc. v Crone 17-01310 CKR Law, LLP and Crone
17-01311 Rinde v Crone
17-01312 Vertex Advisors Limited v Crone
Docket 0
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 44
Debtor(s):
Ralph Gonzaba Guerra Represented By Tyson Takeuchi
Movant(s):
Ditech Financial LLC Represented By Jenelle C Arnold
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 94
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 97).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Freddy A Meza Represented By Sunita N Sood
Joint Debtor(s):
Mercedes Judith Meza Represented By Sunita N Sood
Movant(s):
Deutsche Bank National Trust Represented By Merdaud Jafarnia
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
VALENCIA COURT HOA
vs DEBTOR
Docket 67
Debtor(s):
Karine Mkrtchyan Represented By Ali R Nader
Movant(s):
Valencia Court HOA Represented By Neil B Katz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 44
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Colleen Michelle Hall-Johnson Represented By Matthew D Resnik
Movant(s):
Mission Hen, LLC Represented By John W Cutchin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 39
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of
10:00 AM
sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles Smith Represented By William G Cort
Movant(s):
Deutsche Bank National Trust Represented By Mark D Estle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 46
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtors' response, dkt. 48).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Norman T Cheng Represented By Holly Roark
Joint Debtor(s):
Maggie Cheng Represented By Holly Roark
Movant(s):
Wells Fargo Bank, N.A Represented By Kristin C Rawlings Brandye N Foreman
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, NA vs
DEBTOR
Docket 51
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Kwame Boakye Represented By William J Smyth
Movant(s):
U.S. BANK, NA AS LEGAL TITLE Represented By
Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Represented By William J Smyth
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 84
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Lisa Perez Represented By
Mark S Martinez
Movant(s):
Deutsche Bank National Trust Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NA vs
DEBTOR
Docket 28
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Carlos David Andrade Represented By
Michelle A Marchisotto Craig K Streed
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Therese Kiwi Foisia Represented By Ryan A Stubbe
Movant(s):
The Bank of New York Mellon FKA Represented By
Mark D Estle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 32
Debtor(s):
Sandra Kaye Mitchell Represented By Matthew D Resnik
Movant(s):
U.S. BANK NATIONAL Represented By Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 29
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Davedillon S. Dancel Represented By
W. Derek May
Movant(s):
Wells Fargo Bank, N.A. Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PACIFIC UNION FINANCIAL, LLC
vs DEBTOR
Docket 33
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Edison Dawson Represented By Michael E Clark Barry E Borowitz
Movant(s):
Pacific Union Financial, LLC Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NP154, LLC
vs DEBTOR
Docket 43
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ricardo Manzo Represented By Raymond Perez
Movant(s):
NP154, LLC, its successors and/or Represented By
Kristin A Zilberstein
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PHOENIX REALTY INVESTMENTS, LLC
vs DEBTOR
Docket 28
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay, including as to any predecessor in interest to movant who otherwise would have been stayed. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases. Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re
10:00 AM
Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Beatriz Jimenez Pro Se
Movant(s):
Phoenix Realty Investments, LLC. Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] WELLS FARGO BANK, NA
vs
DEBTOR
Docket 18
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no
10:00 AM
automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Mariana Ramirez Pro Se
Movant(s):
WELLS FARGO BANK, N.A. Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] WELLS FARGO BANK, NA
vs
DEBTOR
Docket 37
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws
10:00 AM
governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brian W Ceballos Represented By Kahlil J McAlpin
Movant(s):
WELLS FARGO BANK, N.A. Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SRIDHAR EQUITIES, LLC
vs DEBTOR
Docket 10
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling is to overrule the debtor's objections (dkt. 19, 25) to the extent that the debtor asserts a lack of adequate notice, but the parties should be prepared to address the debtor's other arguments. As for the alleged lack of notice, the debtor admits receiving notice on 1/6/18 which is over two weeks prior to this hearing and this court routinely shortens time on this type of motion (when there have been unauthorized transfers as part of an apparent scheme to hinder, delay or defraud a creditor), and the debtor has not established any undue prejudice arising from the current time frame.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eurenie Fahmy Pro Se
10:00 AM
Movant(s):
Sridhar Equities, LLC Profit Sharing Represented By
Catherine Schlomann Robertson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICREDIT FINANCIAL SERVICES, INC
vs DEBTOR
Docket 55
- NONE LISTED -
Debtor(s):
Carlos Roberto Calderon Represented By Tamar Terzian
Joint Debtor(s):
Rosalva Calderon Represented By James T King Tamar Terzian
Movant(s):
Americredit Financial Services, Inc., Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 40
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Melanie Zabala Dominguez Represented By
Jaime G Monteclaro
Movant(s):
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 44
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Rita Esparza Represented By
Erika Luna
Movant(s):
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CALIFORNIA PHYSICIANS SERVICE
vs DEBTOR
Docket 19
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Felisa Dee Richards Represented By Eliza Ghanooni
Movant(s):
California Physicians' Service dba Represented By
Michael B Reynolds
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WINTON ASHTON, trustee vs
DEBTOR
Docket 13
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Temeka Jordan Pro Se
Movant(s):
WINTON ASHTON, TRUSTEE Represented By
Stephen C Duringer
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SPRINGDALE PRESERVATION LIMITED PARTNERSHIP
vs DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Warren Kenyatta Welch Pro Se
Movant(s):
Springdale Preservation Limited Represented By
Joseph Cruz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WEI TANG
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
Movant(s):
Lorraine Anderson Represented By Lorraine Anderson
Wei Tang Represented By
Lorraine Anderson
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
Docket 9
Grant, subject to the following conditions, and with a caution to the debtor's counsel that under Judge Bason's posted procedures any opposition may be filed five - not seven - days prior to the hearing (in future a failure to state the correct deadline in the notice of motion may result in various remedies, possibly including denial of certain fees). Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jariyaporn Mousessian Represented By
D Justin Harelik
Movant(s):
Jariyaporn Mousessian Represented By
D Justin Harelik D Justin Harelik D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 8
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan M. Valenzuela Represented By Axel H Richter
Movant(s):
Juan M. Valenzuela Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 48
Tentative Ruling for 1/23/18 (same as for 12/5/17 except encouraging telephonic appearance):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 56).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dora A Navarro Represented By Joseph S Park
10:00 AM
Movant(s):
Ditech Financial LLC Represented By Andrew Kussmaul Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST, NA vs
DEBTOR
Docket 45
Tentative Ruling for 1/23/18 (same as for 12/5/17 except encouraging telephonic appearances):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 47).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cesar Medrano Represented By Joshua L Sternberg
10:00 AM
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK
vs DEBTOR
Docket 35
Tentative Ruling for 1/23/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 12/19/17 hearing on the motion, this court continued the hearing at the request of the parties to provide them additional time to negotiate the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Grant as provided below. Appearances are not required.
10:00 AM
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rogelio Vega Represented By Rebecca Tomilowitz
Joint Debtor(s):
Sonia Vega Represented By
Rebecca Tomilowitz
Movant(s):
JPMORGAN CHASE BANK, Represented By Jenelle C Arnold
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 29
Debtor(s):
Cynthia Diane Greer Represented By William G Cort
Movant(s):
Wells Fargo Bank, N.A. Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Cont'd hrg re: Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
fr. 12/28/17
Docket 5
Tentative Ruling for 1/23/18:
Grant, subject to the following conditions, and also subject to any opposition at the hearing. Appearances required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for
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reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/28/17:
There was no posted tentative ruling for this hearing. This court heard the matter on shortened time and granted the motion temporarily, subject to certain conditions, as memorialized in this court's written order (dkt. 14).
Debtor(s):
Rhonda Nichele Cunningham Represented By Renee E Sanders
Movant(s):
Rhonda Nichele Cunningham Represented By Renee E Sanders
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 29
Tentative Ruling for 1/23/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 1/9/18 this court was persuaded to continue this matter for a possible loan modification and/or agreed adequate protection order. The docket does not reflect any further activity on this matter.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Grant as provided below. Appearances are not required.
10:00 AM
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Luis Montes Represented By Phillip Myer
Joint Debtor(s):
Silvia Montes Represented By Phillip Myer
Movant(s):
The Bank of New York Mellon FKA Represented By
Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 48
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
10:00 AM
for order approving a budget for the use of the debtor's cash and postpetition income
Docket 41
- NONE LISTED -
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt Nicholas W Gebelt Nicholas W Gebelt
Akemi Sakurai Represented By Nicholas W Gebelt Nicholas W Gebelt
10:00 AM
FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 57
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
10:00 AM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 12
- NONE LISTED -
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Movant(s):
Checkmate Kiing, Co., LTD Represented By Robert M Aronson
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
10:00 AM
10:00 AM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 1
- NONE LISTED -
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
10:00 AM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 8
- NONE LISTED -
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
11:00 AM
Application for fees and expenses [Sam S. Leslie, Ch. 7 Trustee]
Docket 21
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jesus Rodriguez-Gaeta Represented By
Ghada Helena Philips
Joint Debtor(s):
Martha F Rodriguez Represented By
Ghada Helena Philips
Trustee(s):
Sam S Leslie (TR) Pro Se
11:00 AM
Applications for fees and expenses [Peter J. Mastan, Ch. 7 Trustee]
Docket 201
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Silvia Parker Represented By
Michael D Luppi
Trustee(s):
Peter J Mastan (TR) Represented By David M Goodrich
11:00 AM
Docket 192
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Silvia Parker Represented By
Michael D Luppi
Movant(s):
SulmeyerKupetz, APC Represented By David M Goodrich
Trustee(s):
Peter J Mastan (TR) Represented By David M Goodrich
11:00 AM
Approval of Compensation and Reimbursement [SLBiggs, Accountant for Ch. 7 Trustee]
Docket 189
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Silvia Parker Represented By
Michael D Luppi
Movant(s):
SLBiggs Pro Se
Trustee(s):
Peter J Mastan (TR) Represented By David M Goodrich
11:00 AM
Docket 98
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Antoinette Elisa Galvan Represented By Michael E Clark
Movant(s):
Peter J Mastan (TR) Represented By Christopher Celentino Peter W Bowie
Trustee(s):
Peter J Mastan (TR) Represented By Christopher Celentino Peter W Bowie
11:00 AM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
Docket 1
Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address why they failed to file the required status report, and also the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/6/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can
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accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines/dates: This adversary proceeding has been pending since 11/21/17. The tentative ruling is to set the following deadlines/dates. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/6/18
Continued status conference: 2/27/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Pro Se
11:00 AM
Eric A. Martin Pro Se
Glenn J. Chaffin Pro Se
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
11:00 AM
Docket 211
Debtor(s):
Brian Lee Represented By
Christian T Kim
Trustee(s):
David A Gill (TR) Represented By John N Tedford Aaron E de Leest
11:00 AM
11 U.S.C. Section 706(b) fr. 10/17/17
Docket 46
Tentative Ruling for 1/23/18:
Continue to 2/27/18 at 11:00 a.m. Appearances are not required on 1/23/18.
Reason: This court has reviewed the U.S. Trustee's status report (dkt. 69), which requests a continuance to allow time for the debtor to provide further evidence supporting his job loss and to find new employment.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Continue to 1/23/18 at 11:00 a.m. to allow the United States Trustee ("UST") to verify whether the debtor's contract at LiveNation has ended, and whether the debtor has obtained other, similarly lucrative employment. Appearances are not required on 10/17/17.
By no later than 11/6/17, the debtor shall file amended bankruptcy schedules, an amended statement of financial affairs, and any other appropriate amendments, including bankruptcy Schedule J, to provide accurate information as of the petition date. In addition, no later than the same deadline, the debtor shall file a statement of postpetition income and expenses, to provide accurate current information.
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By no later than 1/9/18, the UST shall file a status report updating this court on the status of any discovery and its efforts to verify the debtor's employment status and efforts to find new employment.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Debtor(s):
Joshua Daniel Hart Represented By Michael Jay Berger
Movant(s):
United States Trustee (LA) Represented By Kelly L Morrison
Trustee(s):
Jason M Rund (TR) Pro Se
11:00 AM
Adv#: 2:16-01509 Avery v. Nikzad et al
of unauthorized postpetition transfers; (3) Avoidance and recovery of fraudulent transfers; (4) Breach of fiduciary duty; (5) Unfair competition; (6) Trademark infringement; (7) Trademark dilution; and (8) Objection to claims
fr. 1/31/17, 6/20/17, 9/19/17
Docket 1
Debtor(s):
Boardbrokers, Inc Represented By George J Paukert
Defendant(s):
David Nikzad Represented By
Christopher N Lachowicz
Valerie Petredis Represented By
Christopher N Lachowicz
Reinmkr Inc. Represented By
Christopher N Lachowicz
Plaintiff(s):
Wesley H, Avery Represented By Matthew A Lesnick Debra E Cardarelli
Trustee(s):
Wesley H Avery (TR) Represented By
11:00 AM
Jeffrey L Sumpter M Douglas Flahaut Aram Ordubegian Matthew A Lesnick Debra E Cardarelli
11:00 AM
Docket 41
Appearances required by one or both of the debtors. There is no tentative ruling, but the parties should be prepared to address the issues raised by this court's Order setting the matter for hearing (dkt. 42). Namely: (1) Why was this motion not brought sooner? (2) Why would a less expensive vehicle not be adequate? (3) Why have the debtors failed to file a declaration addressing these issues by 1/17/18, as required by that order? (The debtors have instead filed and served another copy of their motion, dkt. 45.)
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael S Lewis Represented By John Habashy
Joint Debtor(s):
Susan M Lewis Represented By John Habashy
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
fr. 1/11/18
Docket 184
Grant, subject to holding the proceeds for future division between the bankruptcy estate and Premium Assignment Corportion II ("Premium") as set forth in the Chapter 11 Trustee's reply (dkt. 207). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Mr. Barrett's Opposition (dkt. 192); Premium's Opposition papers (dkt. 195, 196); Mr. Barrett's Brief re Informal Discovery Conference (dkt. 199); the brief of Evantston Insurance Company ("Evanston") re same (in support of protective order to preclude deposition) (dkt. 200); Evanston's Statement of Non- Opposition (dkt. 198); Evanston Replies (dkt. 205, 206); and the Chapter 11 Trustee's Reply (dkt. 207).
Reasons: The tentative ruling is that, in addition to the reasons stated in the motion (dkt. 184) and the reply briefs filed by the Trustee (dkt. 207) and Evanston (dkt. 206), Mr. Barrett has not established that (a) the expense to the bankruptcy estate of the proposed discovery (let alone any expense that Evanston could charge against any premium refund) would be justified by (b) the apparently remote or perhaps non-existent possibility of discovering facts that would support Mr. Barrett's legal theories, nor has he established that the language of the proposed release in the settlement agreement is so broad that it exceeds the scope of what the estate is permitted to release. See Motion, dkt. 184, pp. 9:27-10:2 (citing inter alia Cal. Ins. Code section 650 "The recission shall apply to all insured under the contract, including
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additional insureds, unless the contract provides otherwise ").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Adv#: 2:17-01412 Evanston Insurance Company v. Layfield & Barrett, APC et al
Docket 0
Please see the tentative ruling for the Chapter 11 Trustee's motion to approve compromise (calendar no. 1, 1/23/18 at 1:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Layfield & Barrett, APC Pro Se
Philip J. Layfield Pro Se
Joseph Barrett Represented By Damion Robinson
Todd D. Wakefield Pro Se
Terry Bailey Pro Se
Plaintiff(s):
Evanston Insurance Company Represented By Michael F Perlis Daniel A Solitro
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Docket 59
Please see the tentative ruling for the status conference (calendar no. 3, 1/23/18 at 1:00 p.m.).
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
1:00 PM
Docket 1
Tentative Ruling for 1/23/18:
Continue this status conference and the combined hearing on final approval of the disclosure statement (dkt. 60) and confirmation of the plan (dkt. 59) to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtor's failure to file the ballot summary with respect to the plan, which was due on 1/16/18 (see Order, dkt. 61) and (b) the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the federal government.
At the continued hearing the debtor should be prepared to testify, or make an offer of proof, as to feasibility.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Income calculation. Exhibit C, Attachment 1, line 7, for income from "operations of business" requires the debtor to "attach detailed
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statement." No such statement appears to be provided.
Disputed claims and other prior issues appear to be adequately addressed. The revised Exhibit F (dkt. 58) lists the 16th Street Group twice: once for the undisputed portion and once for the disputed portion - if the dollar amount of the disputed portion of the claim is sufficient then this appears to fully address this court's concerns expressed in the tentative ruling for 11/7/17. All of this court's other concerns appear to have been fully addressed as well.
Feasibility. This court anticipates that the debtor may be required to testify, or make an offer of proof, as to feasibility at the combined hearing (set forth below) on final approval of the disclosure statement and confirmation of the plan.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: 12/15/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 2/27/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required by counsel for the debtor but telephonic appearances
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are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 54) and disclosure statement (dkt. 53)
Disputed claims. The plan contemplates non-payment to some disputed claims. Unless and until those claims are disallowed (or allowed), the debtor must establish a disputed claims reserve and pay into that reserve in order to confirm any plan.
General unsecured creditors. The plan includes a confusing mix of different listings of general unsecured creditors. Exhibit F starts with the total from the debtor's bankruptcy schedules and then reduces it by a dollar amount that appears to be random (there are no calculations to show how the debtor arrived at that reduction). Attached to Exhibit F is a copy of the debtor's bankruptcy schedules, but those are not manually marked up to show how the debtor arrived at the dollar amounts in Exhibit F.
Exhibit I lists not only general unsecured claims but also priority and secured claims, so it is not helpful to figure out how the debtor arrived at the dollar amount of reduction in Exhibit F.
Exhibit H item "(6)" lists anticipated/pending objections to claims, and provides what appear to be estimated dollar amounts, but there is no basis for such estimates and they are not tied to the reduction in total claims listed in Exhibit F.
It appears that the simpler solution would be (i) to use the "electronic option" in Exhibit F (starting at line 5) for general unsecured claims, instead of attaching the bankruptcy schedules, (ii) cut all unsecured claims from Exhibit I as redundant, and (iii) use a disputed claims reserve and/or obtain final orders disallowing or allowing claims and/or follow the proper procedures for claims estimation, if permissible (see 11 U.S.C. 502(c) and Rule 3018(a), Fed. R. Bankr. P.).
Tax claims. One tax claim has been withdrawn (dkt. 52). Is the tax claim listed in Exhibit A for "LACTTC" a different claim?
Pagination. The debtor's plan divides one-page exhibits onto two pages, which is somewhat confusing. The debtor may need to adjust the page margins to enable them to print on a single page.
Income calculation. Exhibit C, Attachment 1, lines 1 and 7, do not provide adequate disclosure of the debtor's income calculation. Line 1 is for "wages, salary, and commissions" but as an independent contractor the more
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appropriate line would appear to be line 7 for "operations of business," which requires the debtor to "attach detailed statement." In any event, the debtor cannot simply list net income without any disclosure as to the gross revenues, specific expenses, and calculation of that net income.
The debtor's failure to disclose sufficient information about revenues and expenses has been a recurring theme - see the tentative ruling for 7/11/17 (reproduced below), item "(1)(a)" under the "Third" issue. Given this history, this court will require the debtor to file and serve on the U.S. Trustee, no later than the deadline set forth below for filing an amended plan and disclosure statement, a detailed declaration providing documentation as to the basis for each aspect of the income and expense projections (the debtor may incorporate Monthly Operating Reports by reference, but cannot rely only on those MORs - the debtor must provide additional support for his projections).
Double-counting of expenses. Exhibit C, Attachment 1, line 17, includes an adequate protection payment of $325.50/mo. (with a reference to "RFS Order Dkt No. 45"), but it appears that these adequate protection payments will be replaced by the payments in Class 1A of $383.28/mo. It appears that once the added $325.50/mo. is eliminated then the cash flow might be more feasible.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file "blacklined" versions by 11/21/17 (the spreadsheets probably will need to be manually blacklined) (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/12/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/12/17:
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Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Appearances required by counsel for the debtor and by the debtor himself.
Current issues.
Budget motion (dkt. 21). This motion is not on for hearing, but in connection with this Status Conference the debtor should be prepared to address the following concerns.
First, the debtor lists $1,350/mo. in income derived from unemployment benefits, in addition to his $6,150/mo. in business income derived from his self-employment as an independent marketing consultant, a job at which he claims to have been employed for the past year. Dkt. 21, p.
8. How can the debtor obtain unemployment benefits when he is employed? How will the budget change when those benefits cease?
Second, the debtor lists net business income but has failed to provide a breakdown of gross receipts, ordinary and necessary business expenses, and calculation of the resulting monthly net income, as required by the
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instructions on bankruptcy Schedule "I" line 8a. See dkt. 21 at p. 8.
Third, the debtor asserts a 50% interest in a real estate business in Miami, Buena Vista Terminal, LLC. See dkt. 1, pp. 19, 51. What is the nature of that business? Does the debtor derive any income from that business?
Finally, the debtor reports that he has just $43.43 in monthly net income to contribute to a chapter 11 plan. But the debtor has two cars and a motorcyle and over $700/mo. in automobile payments (plus "transportation" costs). Is that reasonable? See In re Concoff (case no. 2:13-bk-37328-NB, dkt. 246).
Application to employ counsel (dkt. 24). Does the U.S. Trustee have any concerns about the proposed interim payment procedures and fee sharing arrangement between Ms. Ghanooni and Ms. Esmaili?
According to the retainer letter (dkt. 24, Ex. 3, para. 4) some of the retainer was to be paid by the debtor's mother, as a gift. But the application and the Rule 2014 disclosures by proposed counsel and by the debtor assert that there is no connection with any insider, and that all funds have come solely from the debtor. Which version of the facts is true? If any portion of the retainer has been paid by a third party, that raises special concerns (e.g., was the third party fully informed, in writing, that counsel represents the DIP not the third party, and might actually have to sue the third party if there were any potentially avoidable transfers? are there any such transfers or other potential conflicts?). See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D.
Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 9/22/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/15/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference, dkt. 8).
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
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Docket 111
Tentative Ruling for 1/23/18:
Grant due to the debtor's notice of errata (dkt. 116), which was timely filed and served pursuant to this court's reduction of time under the adopted tentative ruling for 1/9/18 (reproduced below). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Continue to 1/23/18 at 1:00 p.m. to address the following issues. Appearances are not required on 1/9/18.
Reasons: The motion refers to an Exhibit A that is missing from the attachments. Further, the motion was not filed using mandatory Local Form F 4001-2, which would reveal whether there are certain unusual or standard provisions, e.g., if the loan is secured (by vehicle or other collateral) or whether it is supposed to be an unsecured loan (perhaps with administrative priority over other claims).
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is
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conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
Movant(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Silvana Marie LaMay Represented By Onyinye N Anyama
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fr. 11/7/17
Docket 98
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
Movant(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Silvana Marie LaMay Represented By Onyinye N Anyama
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Docket 1
Tentative Ruling for 1/23/18:
Continue this status conference to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtors' apparent need to amend the proposed plan in view of the recent withdrawal of their objection to the prior claim of the Internal Revenue Service ("IRS") in view of the IRS' amended claim (see dkt. 119);
the debtor's failure to file a brief status report (due 1/16/18 per the adopted tentative ruling for the 11/7/17 hearing, reproduced below); and
the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the federal government.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Continue to 1/23/18 at 1:00 p.m. to address the following issues. Appearances are not required on 11/7/17.
Reasons: This court is continuing the hearing in light of the response filed by the IRS (dkt. 105) and because (1) if the dollar amount owed to the IRS changes then changes also will be needed to the amended plan (dkt. 107) and amended disclosure statement (dkt. 106) and (2) although the debtor
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correctly deleted Endnotes 2, 2A, 2B and 2C from Exhibit H, the debtor forgot to delete the references to those (non-existent) endnotes on Exhibits A and E. No later than 1/16/18 the debtor is directed to file an amended plan to cure these issues, if possible, or alternatively a very brief status report (e.g., one or two sentence).
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/19/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Monthly Operating Report (dkt. 94). What is the $700 transfer for 8/31/17 (at p.4) entitled "money owed"? The debtor reports one missed payment to Wells Fargo in the amount of $2,167.68 (at p.10), as against onl y
$2,398.12 in her rental property account (p.11) and $1,404.57 in her personal account. Is the debtor losing money? Can the debtor propose a feasible plan of reorganization?
Plan (dkt.92) /Disclosure Statement (dkt. 91). (i) These documents are not signed by the debtors ("/s/" typed signatures are only permitted for limited categories of persons, such as registered CM/ECF users). (ii) The Disclosure Statement contemplates claim objections (dkt. 91, Ex.H, Endnotes 1-2). Why have these issues not been resolved by now? (iii) The Disclosure Statement's Endnotes 2A, 2B, 2C and 5 repeat (and/or misstate) the terms of the Plan. Those endnotes should be deleted. (iv) The Disclosure Statement's Ex.C (income/expenses) is divided into two periods, but the income and expenses appear to be identical in each period. Why should this not be a single period?
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
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Plan (dkt.92) /Disclosure Statement (dkt. 91)*: 10/24/17 deadline to file amended documents.
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Status Report. The debtor is using an outdated form. The current version is Local Form F 2081-1.1.CH11.STATUS.RPT.
Cash collateral motion (dkt. 30). Grant on a final basis, on the same terms as in the interim order (dkt. 58).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/5/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee).
Continued status conference: 9/19/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
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Docket 297
- NONE LISTED -
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
Movant(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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and Voting Procedures; (D) Approving Form of Solicitation Materials; and
(E) Setting Confirmation Hearing and Deadlines in Connection therewith fr. 8/22/17, 10/03/17
Docket 244
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
Movant(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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5/23/17, 7/11/17, 8/22/17, 10/03/17
Docket 7
Tentative Ruling for 1/23/18:
Continue to 1/30/18 at 2:00 p.m. to be concurrent with the preliminary hearing (for scheduling purposes) on the debtor's motion (dkt. 297) to estimate Mr.
Britton's claims. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's status report (dkt. 273), and any other matters appropriate for a status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's motion for approval of the proposed disclosure statement (dkt. 244), the Britton opposition (dkt.
260), the debtor's reply (dkt. 263), the debtor's status report (dkt. 262), and
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any other matters appropriate for a status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Continue as set forth below. Appearances are not required on 7/11/17.
Current issues
No sua sponte issues at this time.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement (dkt. 246, 245): D/S hearing scheduled for 8/22/17 at 2:00 p.m. (see dkt. 253).
Continued status conference: 8/22/17 at 2:00 p.m.; brief Status Report due 8/15/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/23/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The parties should be prepared to update this court on the status of the issues noted in the debtor's Eighth Status Report (dkt. 231), as well as whether this court should set any deadlines or procedures.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: The court will discuss setting deadlines related to the Plan/Disclosure Statement at the status
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conference.
Continued status conference: 6/20/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted
provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/25/17:
Continue all matters to 5/23/17 at 1:00 p.m. pursuant to the debtor's request in the Seventh Status Conference Report (dkt. 224, p.3). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/28/17:
Continue all matters to 4/25/17 at 1:00 p.m. pursuant to the debtor's request in the Sixth Status Conference Report (dkt. 212, p.3). Appearances are not required on 2/28/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 12/13/16:
Continue all matters to 2/28/17 at 2:00 p.m. pursuant to the parties' request in the status conference statement (dkt. 181, p.3). Appearances are not required on 12/13/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 12/13/16:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The parties should be prepared to update this court on the status of this case including their negotiations, why this court should not order mandatory mediation, which parties in interest should be included in such mediation, and any other appropriate procedures regarding payment of professionals, filing documents under seal, etc.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: no deadline
Continued status conference: 2/28/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Fee applications. The tentative ruling is (1) after the reductions that Browne concedes, to overrule the Britton objection to Browne's fees; (2) to sustain in part the limited objection of Ms. West by allowing 100%, but temporarily deferring any payment (either from any retainer or from other sources), on account of the fee applications, with a deadline of 12/12/16 for Ms. West to file (a) an adversary proceeding to determine the relative priorities of her rights and interests in the royalties, and/or other funds in which the debtor's estate asserts an interest, as against the debtor, its creditors, and other parties in interest, and (b) a request (motion) for
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adequate protection of her alleged claims or interests (pursuant to 11 U.S.C. 361 and 363(c), (e), (p), and Rule 7001(2), (7) & (9), Fed. R. Bankr. P.). In addition, this court anticipates providing a tentative ruling on the merits of Ms. West's asserted rights and interests, and addressing what documents (already filed or filed in future) do or do not have to be under seal, and establishing a mutually workable procedure for any sealed documents.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: no deadline
Continued status conference: 4/4/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/6/16:
Continue to 12/13/16 at 1:00 p.m. based on the debtor's current status report (dkt. 112). Appearances are not required on 9/6/16.
The debtor is directed to file a brief status report two weeks before the continued status conference.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/12/16:
Continue to 9/6/16 at 11:00 a.m. to address the following issues. Appearances are not required on 4/12/16.
Based on the statements made in the debtor's status report (dkt. 92), this Court continues this status conference as set forth above. The debtor shall file a brief status report two weeks before the continued status conference.
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/2/16:
Continue to 2/23/16 at 2:00 p.m. unless any opposition/response to employment or recusal are filed prior to 1/30/16. Appearances are not required on 2/2/16.
Reasons: At the hearing on 1/19/16, this court stated that the status conference would be continued without further hearing if no oppositions/responses to employment or recusal were received by the deadline for such things, which is 1/29/16. As of the preparation of this tentative ruling (on 1/29/16) no such documents have yet been filed.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 1/19/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Key documents reviewed: Motion for relief from automatic stay (dkt. 11), the debtor's opposition (dkt. 33), and the movant's reply (dkt. 46); and the debtor's application to employ Browne George Ross LLP as special counsel under 11 U.S.C. 327(e) and supporting papers (dkt. 26-30, 44, 45).
Current issues.
Background. Claimant Britton's motion for relief from the automatic stay (dkt. 11) seeks to modify the automatic stay to liquidate the parties' claims in the underlying State Court action (Britton v. Riggs, LA Superior Ct. No. BC 496298). Just before trial was set to commence, the debtor filed this bankruptcy case, and trial has now been continued to 2/10/16. The debtor has filed an application (dkt. 26) to employ its existing attorneys in the State Court action as special counsel.
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In view of the apparent urgency of these matters, this Bankruptcy
Court issued an order raising a number of its initial concerns (dkt. 35), held a preliminiary hearing on 1/8/16, and directed the debtor to serve a supplemental notice addressing certain issues. In addition, when Judge Bason's law clerk learned of certain attenuated connections between him and the parties in this case, those matters were disclosed on the record (dkt. 39), and the debtor was directed to serve those disclosures on all parties in interest.
The debtor complied with these notice requirements (see dkt. 44, 43, 45) and the period for any response expires on 1/29/16 (fixed date in dkt. 39 as to this court's disclosures; and service on 1/11/16 + 14 days' notice + 3 days for service via U.S. mail = 1/29/16 as to the employment application). As of the time when this tentative ruling has been prepared (1/18/16) no response on either matter appears on the docket.
Relief from the automatic stay. The tentative ruling is to modify the automatic stay as follows, effective immediately upon (i) entry of an order of this court granting the employment application (so that the debtor can defend and prosecute its claims in the State Court action) and (ii) resolution of any request to be heard regarding recusal. Specifically, the automatic stay would be modified to permit litigation of the State court action insofar as liquidating claims by Mr. Britton agains the debtor and its principal, Mr. Riggs, as well as liquidating any counterclaims, including all subsidiary disputes such as whether the statute of limitations should be tolled and any alter ego issues, but not to permit enforcement of any judgment against any property in which the debtor asserts an interest absent further order of this Bankruptcy Court.
Judge Bason is not persuaded by the debtor's argument that the statute of limitations issue should be addressed by this Bankruptcy Court before any State Court litigation is permitted to continue. The principles underlying the Rooker Feldman doctrine (that this Bankruptcy Court may not act as essentially an appellate court for State Court determinations), as well as comity, a respect for the State Court's determination of these issues, conservation of judicial resources, the avoidance of forum shopping, and not permitting a party to obtain "two bites at the apple" all weigh against deciding the statute of limitations issues here. The State Court issued a detailed tentative ruling (dkt. 46-1, Ex.A, pp.23-26) regarding the statute of limitations issues, including its conclusion that those issues could not be determined as
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a matter of law because a reasonable trier of fact "may well determine that the delay in filing the action was due to the Defendants' fraud or other misconduct such that Defendants should be estopped from asserting the statute of limitations," and the State Court apparently adopted that tentative ruling when it denied the defendants' motion for summary judgment and declined to address the statute of limitations issues before trial. Judge Bason is not persuaded that this Bankruptcy Court can or should revisit that determination.
As to any claims that are truly alter ego claims (as distinguished from fraudulent transfer claims or other avoidance actions that belong to this bankruptcy estate), the tentative ruling is that under the Ahcom decision (623 F.3d 1248 (9th Cir. 2010)), any such claims do not belong to the bankruptcy estate and, therefore, the automatic stay would not prevent claimant Mr.
Britton from seeking to establish and pursue any alter ego claims against Mr. Riggs. Alternatively, the tentative ruling is to modify the automatic stay (if it applied) to permit such true alter ego claims to be litigated (when and if the State Court determines that they should be) because if those issues turn out to be relevant then they will have to be litigated anyway, and the State Court would be the proper forum in which to litigate them. To the extent that the debtor seeks to stay (enjoin) any such alter ego claims against Mr. Riggs in this bankruptcy case, such an injunction would have to be the subject of a separate adversary proceeding. See, e.g., In re Excel Innovations, Inc., 502 F.3d 1086 (9th Cir. 2007).
Employment of special litigation counsel. The tentative ruling is to conditionally approve employment of special litigation counsel for the reasons stated at the preliminary hearing on 1/8/16 and in the application (dkt. 26) and debtor's supplemental disclosures (dkt. 44). The condition is that no order approving such employment should be lodged until after the period for responses to such application or to this court's disclosures has expired (on 1/29/16), and of course if any such response is filed then this court will consider such responses (at a hearing as set forth below).
The potential for alter ego claims does not appear to create any cognizable conflict, at least at this stage of the litigation. Although it could be argued that there would be a conflict because any recovery that Mr. Britton could obtain from Mr. Riggs would decrease his claim against the debtor, and therefore theoretically benefit the debtor, it seems more likely at this stage
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that both Mr. Riggs and the debtor have a unified interest in contesting any asserted grounds for alter ego liability (i) so as to assure that Mr. Riggs devotes his energies to the debtor's future success and ability to pay its creditors, and (ii) so as to attempt to assure that there is a level playing field among the debtor's creditors (which, arguably, there would not be if one creditor - Mr. Britton - could pursue alter ego recoveries before other creditors could seek to do the same).
Of course, counsel for the debtor (both general and special counsel) and Mr. Riggs himself will need to monitor the situation continually. If a conflict or potential conflict does develop, they will need to file appropriate disclosures and/or seek a supplemental ruling from this court regarding the terms of any continued employment of special counsel.
Tentative hearing. If any response is filed to either the employment application or this court's disclosures, then a hearing will take place on 2/2/16 at 2:00 p.m. to address those things. If there is any such response, the debtor must notify chambers so that the matter may be added to this court's calendar for that day.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement*: file by 7/1/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 2/2/16 at 2:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
*Warning: special procedures apply (see order setting initial status conference).
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/19/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/5/16:
Appearances required by counsel for the debtor and by the principal of the debtor.
Current issues.
Affiliated businesses. The debtor's status report (dkt. 20, p.8:17- 9:3) requests that the debtor be excused from providing financial information concerning affiliates in both the status report and monthly operating reports. The tentative ruling is to grant that request.
Service of status report. This court's form status report must be served on, inter alia, all of the debtor's secured creditors and the top 20 largest general unsecured creditors. It appears that there are no secured creditors, but that unsecured creditors were not served (see dkt. 20, p. 10). The tentative ruling is to direct the debtor, no later than 1/6/16, to serve all parties in interest with a copy of the status report and this tentative ruling, and then parties in interest may, if they choose, raise any appropriate issues at future status conferences.
Plan and disclosure statement. The debtor has suggested (dkt. 20, p.4:20-23) a deadline of 4/30/16 to file initial drafts. The debtor should be prepared to address the associated procedures, including the local form plan and whether that deadline is consistent with the pending litigation with creditor Layne Leslie Britton (dkt. 11), currently set for trial in State court for 2/10/16.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement*: file by 4/30/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft
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Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but,
whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 1/19/16 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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Docket 1
Tentative Ruling for 1/23/18:
Continue to 2/13/18 at 2:00 p.m., in view of (a) the debtor's status report (dkt. 313) and (b) the inability of the Office of the United States Trustee to appear on 1/23/18 in view of the shutdown of much of the federal government. Note: Prior to 2/13/18 this court anticipates posting a tentative ruling for a further continuance to 4/17/18 at 2:00 p.m., unless a party in interest files a status report no later than 2/6/18 requesting to be heard on 2/13/18. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 10/17/17:
Continue to 11/7/17 at 2:00 p.m. to be heard concurrent with the fee applications. Appearances are not required on 10/17/17.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/12/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any outstanding disputes with landlords, or other issues that are appropriate for disposition at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Bachrach, LLC Represented By Brian L Davidoff
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Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
and for setoff pursuant to 11 U.S.C. section 553 fr. 01/05/16, 02/23/16, 03/22/16, 4/5/16, 4/12/16,
5/16/16, 7/19/16, 8/9/16, 9/6/16, 10/11/16, 11/1/16,
2/21/17, 4/11/17, 5/23/17, 8/8/17, 9/12/17
Docket 1
Tentative Ruling for 1/23/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to address the status of this adversary proceeding and why no status report has been filed, as required by this court's order (dkt. 58) and by the Local Bankruptcy Rules.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 9/12/17:
Continue to 1/23/18 at 2:00 p.m. based on the representations in the plaintiff's status report (adv. dkt. 55). Appearances are not required on 9/12/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative
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rulings".
Tentative Ruling for 9/12/17:
Appearances required. This court continued this matter from 8/8/17 to 9/12/17 sua sponte (dkt. 53). The parties should be prepared to address the issues noted in the tentative ruling for 8/8/17 (reproduced below).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/8/17:
Appearances required. The court has reviewed the crossclaim (dkt. 47) and answer to crossclaim (dkt. 52), and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
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Deadlines: This adversary proceeding has been pending since 6/23/15. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 10/9/17 Expert(s) - deadline for reports: 10/23/17
Expert(s) - discovery cutoff (if different from above): 11/6/17 Dispositive motions to be heard no later than: 12/21/17 Joint Status Report: 10/31/17.
Continued status conference: 11/14/17 at 11:00 a.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/23/17:
Please see the tentative ruling for calendar no. 9 (5/23/17 at 2:00 p.m.).
Tentative Ruling for 4/11/17:
Please see the tentative ruling for calendar no. 4 (4/11/17 at 2:00 p.m.).
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
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Plaintiff(s):
Official Committee of Creditors Represented By Christopher Celentino Peter W Bowie
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Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
fr. 8/8/17, 9/12/17
Docket 47
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the adversary proceeding status conference (calendar no. 5, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 9/12/17:
Please see the tentative ruling for the adversary proceeding status conference (calendar no. 5, 9/12/17 at 2:00 p.m.).
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
Plaintiff(s):
Official Committee of Creditors Represented By Christopher Celentino
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Peter W Bowie
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Adv#: 2:15-01331 Official Committee of Creditors Holding Unsecured v. Mayer Hoffmann
and for setoff pursuant to 11 U.S.C. section 553
fr. 01/05/16, 02/23/16, 02/23/16, 03/22/16, 04/05/16, 04/12/16, 05/16/16, 07/19/16, 11/01/16, 02/21/17,
4/11/17, 05/23/17, 07/11/17, 10/3/17, 10/17/17
Docket 1
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Mayer Hoffmann McCann P.C. Represented By Kyle J Mathews
Plaintiff(s):
Official Committee of Creditors Represented By Peter W Bowie
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Docket 1
Tentative Ruling for 1/23/18:
Continue the status conferences in both the main case and the adversary proceeding (adv. no. 2:17-ap-01326-NB) to 2/13/18 at 2:00 p.m. with a status report due 2/6/18 (at which time other documents are also due as set forth below) for the reasons set forth below. Appearances are not required on 1/23/18.
Current issues
Reasons for continuance: (i) because of the problems noted below;
because of the debtor's untimely last-minute filing of status reports (the debtor is cautioned that continued untimely filings may result in sanctions);
because of the inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government, (iv) to be concurrent with the (improperly self-calendared) motion to amend the complaint, and (v) in view of the debtor's various status reports (main case dkt. 117, adv. dkt. 122, 127, 129).
Bar date. The debtor's proofs of service of the bar date order are missing exhibits and incomprehensible (see dkt. 110, 111). The debtor is directed to file, no later than 2/6/18, either a corrected proof of service or an application (supported by a declaration) to set yet another supplemental bar date - whichever is appropriate.
Status of existing complaint in adversary proceeding. On 11/20/17 this court issued an order (adv. dkt. 117) denying the plaintiff/debtor's motions for default judgments, without prejudice. The debtor now seeks to amend the complaint (adv. dkt. 125). All of these things moot the motions for default judgments so the hearings on those motions have been vacated.
In addition, the tentative ruling is to memorialize this court's reasons for denying the motions for default judgments by filing on the docket a copy of
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this court's adopted tentative ruling for the 11/14/17 hearings on those motions (reproduced within the tentative ruling for calendar no. 9. 1/23/18 at 2:00 p.m.).
Motion to amend complaint (adv. dkt. 125). This motion was self- calendared for 2:00 p.m. (a time that cannot be used for self-calendaring) on 2/13/18. Nevertheless, the tentative ruling is to permit that motion to proceed at that time.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60); supplemental date of 1/26/18, to be served no later than 11/15/17 (per Order, dkt. 107) but proofs of service are incomprehensible (dkt. 110, 111) - see above under "current issues".
Plan/Disclosure Statement*: TBD.
Continued status conference: as set forth above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the following issues.
Current issues. The debtor has filed a second (very belated) proof of service (dkt. 103) of this court's order (dkt. 56) setting a bar date. Under that
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order the bar date was set as 7/10/17 and service was required no later than 5/8/17. What does the debtor's belated service do except cause confusion? Does the debtor require a new bar date for previously unknown creditors?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60; but see above under "current issues").
Plan/Disclosure Statement*: TBD.
Continued status conference: 1/30/18 at 2:00 p.m., status report due 1/16/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
The tentative ruling is to dismiss this case with a 180 day bar for willful failure to appear in proper prosecution, as set forth below. See 11 U.S.C. 109(g)(1). Appearances are not required.
Reasons: This case was filed on 11/23/16. The debtor's assets consist of disputed rights in hydrocarbon leases. See Status Report, dkt. 81. Realizing any value from those rights apparently depends on retaining special counsel who will diligently prosecute the debtor's claims. Despite numerous opportunities, the debtor has failed to satisfy the prerequisites for retention of special counsel.
Inadequate declarations about "connections"
At the hearing on 7/11/17 this court extensively reviewed the evidence that would be required before this court could approve the application to employ the latest proposed special counsel, Mr. Montes. That included a
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requirement of detailed declarations from Mr. and Mrs. Hoats regarding any transfers of any property (including intangible property) involving the debtor and any of them, as well as any other "connections" (as that term is used in Rule 2014, Fed. R. Bankr. P.) to the debtor and any other party in interest.
This court recognizes that Mr. and Mrs. Hoats are not the professionals whose employment is being sought. Nevertheless, given their very close ties to the debtor, and their failure to disclose connections to the prior proposed special counsel that raised questions about conflicts of interest, this court orally ordered the debtor to provide their declarations at the hearing on 5/2/17. That order has been ignored.
Knudsen factors
This court also directed Mr. Montes to file a declaration addressing the factors that this court must consider in assessing his request to be paid more frequently than once every 120 days. See In re Knudsen, 84 B.R. 668, 672- 73 (9th Cir. BAP 1988). Mr. Montes has filed such a declaration (dkt. 82) and has adequately summarized the factors (id., p.3:15-23) but he has not adequately addressed the third factor, which he summarizes as: "any funds paid but later disapproved by the court can be recovered from the professional" in one or more of the ways listed in Knudsen. (Emphasis added.) Those ways are:
[a. Holdback] retainer payments are for only a percentage of the amount billed so that the likelihood or necessity of repayment is minimal [Mr. Montes suggests a 10% holdback, which has not been shown to be adequate - the typical amount is 20%, and that typically applies only to well established firms whose ability to repay funds is reinforced by the firm's longevity and reputation or similar considerations];
[b. Bond] counsel can post a bond covering any possible reassessment [Mr. Montes has not addressed this factor];
[c. Financial ability to repay] counsel's financial position makes it certain that any reassessment can be repaid [Mr. Montes has not addressed this factor]; [and/or]
[d. Hold funds in trust account] funds paid prior to allowance are held in a trust account until a final or interim fee allowance is made [Mr. Montes has only offered to place the 10% proposed holdback in a trust account]. [Knudsen, 84 B.R. 668, at 672]
The debtor appears to cite the wrong statutory authority
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The debtor's application to employ Mr. Montes (dkt. 65) requests that
his employment be approved under subsection "(e)" of 11 U.S.C. 327. But that subsection only applies by its terms to an attorney who "has represented the debtor" (i.e., prepetition counsel whose employment is to continue postpetition). Id. (emphasis added).
That is not the end of the analysis, because it has been held that special counsel can be employed even when such counsel has not represented the debtor prepetition. See In re Fondiller, 15 B.R. 890, 892 (9th Cir. BAP 1981) (emphasis added), appeal dism., 707 F.2d 441 (9th Cir.
1983). Although Fondiller has been interpreted as authorizing employment under subsection (e) (see, e.g., Covenant Fin. Group of Am., Inc., 243 B.R. 450, 455 & n. 8 (Bankr. N.D. Ala. 1999)), the precise holding of Fondiller appears to be that special counsel can be employed under subsection "(a)" of Section 327 because any "omission" in subsection "(e)" does not limit the general authority in subsection "(a)." See Fondiller, 15 B.R. at 891-92 (interpreting § 327(a) by comparison with §§ 327(c) and (e)).
True, the precise statutory authority appears to make little if any practical difference, because Fondiller held that when counsel is only employed to perform limited services, then an interest "adverse to the estate" means "an adverse interest relating to the services which are to be performed by that attorney," which appears to mean that the inquiry for proposed special counsel under subsection "(a)" is the same as under subsection "(e)." Fondiller, 15 B.R. at 892 (emphasis added). Mr. Montes' declaration (included in dkt. 65) appears to meet this test because he states that he has no adverse interest.
Nevertheless, as stated above this court has required additional evidence from Mr. and Mrs. Hoats and that evidence has not been provided. In addition, because the debtor has sought authority under subsection "(e)" instead of "(a)" it appears not have met the technical requirements for employment of Mr. Montes.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 7/11/17:
Appearances required.
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Current issues
Employment of special counsel. Deny the application to employ the Law Offices of M. Brian McMahon (dkt. 46) because he no longer intends to pursue employment. See dkt. 73, para. 3. Deny the application to emply the Law Offices of Mike Montes, Jr. (dkt. 65) due to the failure to address the issues raised by this court in the tentative ruling for 5/2/17 (reproduced below) (without reaching the issues raised by the U.S. Trustee's objection, dkt. 72, and the debtor's reply, dkt. 74). The U.S. Trustee is directed to lodge proposed orders denying each application within seven days after this hearing date.
Lack of progress. Should this case be dismissed for lack of prosecution?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/22/17 at 2:00 p.m., status report due 8/15/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Continue to 7/11/17 at 1:00 p.m. to allow the debtor time to prosecute an employment application regarding Mr. Motes (see debtor's case status report, dkt. 62). Appearances are not required on 6/13/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/2/17:
Appearances required. There is no tentative ruling, but the debtor's proposed
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attorney, Brian McMahon Esq., should be prepared to address the concerns set forth in the U.S. Trustee's objection (dkt. 49) and the other issues set forth below.
Current issues.
Proposed special counsel.
Background. On 4/5/17 the debtor filed an application for authority to employ the law offices of Mr. McMahon as special counsel under 11 U.S.C. 327(e) (dkt. 47). On 4/12/17 the United States Trustee ("UST") filed an objection to the employment application, which expressed concerns about the payment arrangement proposed in the application (dkt. 49).
The debtor filed a statement of disinterestedness for Mr. McMahon (dkt.53), and a reply (dkt.55), stating that a third party, Ms. Lilian Hoats, will be paying the attorney fees for Mr. McMahon's representation. Ms. Hoats is the CEO of Inviron Technologies, Inc. ("Managing Member"), which is the debtor's managing member (dkt. 55, Ex.1, p.1, recital "b"). Attached to the reply (dkt. 55, Ex.1) is a written document that purports to be a waiver of conflicts (if any exist) among the debtor, Ms. Hoats, and the Managing Member (the "Hoats/Managing Member Conflict Waiver").
The Attorney-Client Retainer Agreement attached to the employment application (dkt. 46, Ex.1) provides that Mr. McMahon is representing not only the debtor but also its affiliates Riverwood Energy, LLC ("Energy Affiliate") and Riverwood Resources Ltd. ("Resources Affiliate"). This court is not aware of the precise organizational and contractual relationships among the debtor, Energy Affiliate, and Resources Affiliate, nor of any written document purporting to be a waiver of conflicts (if any exist) among them.
Statutory provisions and rules
Although special counsel does not have to be "distinterested" (compare 11 U.S.C. 327(a)), special counsel still must not "represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed." 11 U.S.C. 327(e) (emphasis added). Under Rule 2014 (Fed. R. Bankr. P.) both Mr. McMahon and the debtor were supposed to disclose all connections between Mr. McMahon and "the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee."
The disclosures have not been adequate. This court does not know
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enough about the underlying litigation and the organizational and contractual relationships among the various entities to assess whether there may be conflicts of interest between the debtor, on the one hand, and Ms. Hoats, Managing Member, Energy Affiliate, and/or Resource Affiliate.
A DIP's conflicts generally cannot be waived
Any purported conflict waiver probably cannot waive actual conflicts.
See, e.g., In re Perry, 194 B.R. 875, 880 (E.D.Cal.1996) (waiver of conflict by non-debtor parties was insufficient and "[i]nformed consent could not be obtained" because "the real parties in interest in this case are the creditors, and that is not a waivable conflict"); In re B.E.S. Concrete Products, Inc., 93 B.R. 228, 235 (Bankr. E.D. Cal. 1988).
But while actual conflicts of interest create a violation of 11 U.S.C. 327 which would require disqualification of the proposed professional, the mere existence of a potential conflict of interest does not require disqualification, and it is up to the court's discretion whether the purported conflict is sufficiently threatening to the estate to warrant disqualification. In re Wheatfield Business Park, LLC, 286 B.R. 412, 421 (Bankr. C.D. Cal. 2002).
Are proposed counsel and the debtor aware of any actual conflicts?
How about potential conflicts?
The purported conflict waiver is incomplete
The Hoats/Managing Member Conflict Waiver is not actually signed by Ms. Hoats in her individual capacity (she has only signed it on behalf of the debtor's Managing Member). In addition, as noted above, this court is not aware of any purported conflict waiver among the debtor and Operating Affiliate or Resources Affiliate.
There might be conflicts among the debtor and Ms. Hoats A third party who funds a retainer for the debtor (the "Funder")
generally has some pre-existing relationship with the debtor, and/or some motivation to providing the funding. Those things increase the likelihood that the Funder could be the recipient of an avoidable preference, or might have alter ego liability, or otherwise might have interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a third party is not outright prohibited, it is fraught with ethical concerns. At the hearing, counsel for the debtor and proposed special counsel should be prepared to address the following.
Terms. What are the precise agreements,
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understandings or expectations regarding the funds -- e.g., are the funds a loan, a gift, an investment, or something else?
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and that the sole attorney-client relationship and duty of loyalty is with the debtor, not the Funder? Who provided such advice: independent counsel? counsel for the debtor? the debtor's proposed special counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing? Ms. Hoats has signed the Hoats/Managing Member conflict waiver on behalf of the debtor: how can she, acting for the debtor, waive conflicts with herself?
Other considerations. Has proposed special counsel demonstrated or represented to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Lotus Prop's LP, 200 B.R. 388 (Bankr. C.D. Cal. 1996) (rejecting per se disqualification when fees are paid by third party); and compare In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990) (per se rule). See generally In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/4/17:
Appearances required by counsel for the debtor but telephonic appearances
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are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status report. This court's previous tentative ruling (reproduced below) directed the debtor to file a status report by 3/14/17. Why has no such status report been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/7/17:
Continue to 4/4/17 at 2:00 p.m., status report due 3/14/17. No appearances are required on 2/7/17.
(1) Current issues
This case was filed on 11/23/16. The debtor's status report (dkt. 34) states that the debtor intends to retain special counsel, and the monthly operating reports (dkt. 37, 38) appear to show no activity other than opening DIP bank accounts and paying associated fees. Although progress in this case has been slow, it does not appear efficient to hold a status conference at this time. If substantially more progress is not shown by the next status conference, this court may dismiss this case for failure to appear in proper prosecution. See 11 U.S.C. 109(g)(1), 349.
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Substitution of attorney. On 12/23/16, the debtor filed a substitution of attorney (dkt. 22) reflecting that current proposed counsel is Giovanni Orantes, Esq. Why has no employment application been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/13/16:
Appearances required.
Current issues
Counsel for the debtor should be prepared to address why no status report has been filed (see dkt. 3); why the docket does not reflect that anything has been done in this case to date; and why this court should not convert or dismiss this case.
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Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor and by the debtor(s) themselves, pursuant to the order setting this status conference (dkt. 3).
Current issues.
First Day Motions. The debtor should be prepared to address the necessity of first day motions such as cash collateral, payroll, utilities, etc. To the extent that those motions are necessary, why have they not yet been filed?
Deadlines/dates. This case was filed on 11/23/16.
Bar date*: to be set at the continued status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 12/13/16 at 2:00 p.m., initial status report due 11/29/16.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
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Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
[Defendant, Phoenix Oil and Gas Inc. dismissed on 11/6/17] [Defendant, Tatyana Grukhina dismissed on 11/6/17] [Defendant, Charles Ross dismissed on 11/29/17] [Defendant, Tearlach Resources LTD dismissed on 11/29/17]
[Defendant, United Pacific Energy Operations and Consulting, Inc dismissed on 11/29/17]
Cont'd status Conference re: Complaint 1) Breach of Written Contract; 2) Breach of Implied Contract
and Fair Dealings; 3) Interfering with Economic Relationship; 4) Slander of Title; 5) Quiet Title;
6) Declaratory Relief fr. 8/22/17, 11/14/17
Docket 1
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 8, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 11/14/17:
Appearances required. The tentative ruling is to deny the motions for default judgments, without prejudice, for the reasons set forth below, and to set a continued status conference for 1/30/18 at 2:00 p.m.
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On the one hand, there appears to be successful prosecution of this adversary proceeding because, according to the plaintiff's status report (adv. dkt. 92), all of the defendants have either agreed to the requested declaratory relief or have defaulted. On the other hand, there are some fundamental issues that appear to prevent this court from granting default judgments at this time.
Self-calendaring error. The motions for default judgments were only served on 10/27/17. See, e.g., Motion for Default Judgment Derek Wilshee (dkt. 83, 74) (collectively, the "Wilshee Default Motion"). That is insufficient time prior to the hearing, under the applicable rules, nor was there any cover notice of the hearing date and deadline for any opposition or response.
Jurisdictional issues.
Personal jurisdiction. Does the complaint adequately establish personal jurisdiction over each defendant? At least one defendant is alleged to be a resident of Australia (dkt. 1, para. 14), although the plaintiff has voluntarily dismissed claims against that defendant (dkt. 107). Are each of the defaulting defendants subject to personal jurisdiction?
Subject matter jurisdiction, and abstention. The complaint and motions for default judgment make somewhat vague assertions of other action(s) that were or are pending in other courts apparently involving the same subject matter, and involving at least preliminary injunctive relief if not other relief. Can this Bankruptcy Court assume jurisdiction over matters that are pending in other courts? Must or should this Bankruptcy Court abstain?
Allegations of wrongdoing. Where is the analysis tying each of the defaulting defendants to one or more of the specific acts of wrongdoing bringing them within the claims in the complaint? For example, the only allegation in the complaint regarding Mr. Wilshee (dkt. 1, para. 14) appears to be that he was at one time an officer of the debtor. How is that an act of wrongdoing?
The Wilshee Default Motion seeks a default judgment against Mr.
Wilshee of $431,472,300.00 (dkt. 74, at PDF p.51 of 53). How is he responsible for such alleged damages? Does the complaint need to be amended to establish, as against one or more of the defaulting defendants,
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how they are alleged to be liable?
Calculation of damages. An exhibit to the plaintiff's motions for default judgments asserts that "Based on Department of Conservation Records [available on a website and/or verified by whom?], these leases [which leases? the ones that allegedly were supposed to be assigned but were not?] were producing 1730 barrels of Oil a day [when?]" and "[w]ith today's technology [how is today's technology better?], a conservative figure would be 3500 barrels a day [based on whose expert opinion?] that will be used as a figure for all the losses caused by Western States International [how about other defendants?]." Dkt. 83, Ex.A, at PDF p.17 of 53. The same exhibit shows a calculation of alleged damages based on "Approx Production" of "105,000" which is far more than 3500 barrels (perhaps using a 30-day presumptive month multiplied by 3500 barrels a day?), an "Average Oil Price [from what source?]," and a "Cost [to extract, market, refine, deliver, and sell the oil - or some other or different set of things? based on what expert's opinion?]." Based on the foregoing questions, and applying Rule 55(b)(2) (Fed. R. Civ. P.) (incorporated by Rule 7055, Fed. R. Bankr. P.), it appears that additional evidence and a "prove up" hearing will be needed to determine the amount of damages, if not other issues.
Alleged costs, attorney fees, and interest. The debtor/plaintiff asserts $1 million in costs (dkt. 74 at PDF p.51 of 53) - how is that possible? What are the components? Attorney fees are alleged to be $300,000 - this case has barely commenced, so how is that possible? Where are the daily time sheets and/or other support for this figure? Prejudgment interest is alleged to be at a 10% rate per year starting 1/1/11. What is the contractual or statutory basis for that interest rate and that commencement date? The purported damages were incurred month by month, so how can interest run from before those damages were incurred?
Declaratory relief. The plaintiff makes broad allegations about the rights under various contracts, or arising from breaches of those contracts or by operation of law. Where is the support for these allegations? The plaintiff cannot place the burden on this court to sort through numerous provisions of various contracts to piece together the plaintiff's theory. The plaintiff must provide specific, easy-to-follow analysis and evidence.
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Conclusion. Because the motions for default judgments are both procedurally and substantively deficient in all of the ways set forth above, the tentative ruling is to deny them without prejudice.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. This court notes that the parties were directed to file a joint status report two weeks in advance of this hearing (dkt. 2), but have not done so. In addition, this court notes that the tentative ruling in the main case status conference (calendar no. 3, 8/22/17 at 2:00 p.m.) is to dismiss the main case, which normally would terminate this adversary proceeding.
Nevertheless, to preserve all rights in the event that this court were to be persuaded not to dismiss the main case, this court has reviewed the other filed documents and records in this adversary proceeding and issues the following tentative ruling.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent);
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In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 6/19/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 1/12/18 Expert(s) - deadline for reports: 1/26/18
Expert(s) - discovery cutoff (if different from above): 2/9/18 Dispositive motions to be heard no later than: 3/2/18
Joint Status Report: 11/28/17
Continued status conference: 12/12/17 at 11:00 a.m. Trial deadlines to be determined at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
2:00 PM
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
David Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Pro Se
DOES 1 through 10, inclusive Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 88
- NONE LISTED -
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
2:00 PM
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Pro Se
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 87
- NONE LISTED -
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
2:00 PM
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Pro Se
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 85
- NONE LISTED -
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
2:00 PM
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Pro Se
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 86
- NONE LISTED -
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
2:00 PM
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Pro Se
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 83
- NONE LISTED -
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
2:00 PM
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Pro Se
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 90
- NONE LISTED -
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
2:00 PM
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Pro Se
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 93
- NONE LISTED -
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
2:00 PM
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Pro Se
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Docket 1
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
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Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
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Cash collateral motion (dkt. 8). The tentative ruling is to grant this
motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such
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expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
2:00 PM
Docket 41
Please see the tentative ruling for the status conference (calendar no. 17, 1/23/18 at 2:00 p.m.).
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt Nicholas W Gebelt Nicholas W Gebelt
Akemi Sakurai Represented By Nicholas W Gebelt Nicholas W Gebelt
2:00 PM
FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 48
Please see the tentative ruling for the status conference (calendar no. 17, 1/23/18 at 2:00 p.m.).
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
2:00 PM
Docket 1
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of
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financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to
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address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the
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hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 57
Please see the tentative ruling for the status conference (calendar no. 20, 1/23/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 1
Please see the tentative ruling for the status conference (calendar no. 20, 1/23/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 8
Please see the tentative ruling for the status conference (calendar no. 20, 1/23/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 12
Please see the tentative ruling for the status conference (calendar no. 20, 1/23/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Movant(s):
Checkmate Kiing, Co., LTD Represented By Robert M Aronson
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson
2:00 PM
Nicholas W Gebelt
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 44
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): The debtor's non- opposition (dkt. 46).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk- 10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy
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case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Erick Alexander Sanchez Represented By Andrew Moher
Movant(s):
Deutsche Bank National Trust Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 43
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk- 10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
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possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Silvia Gonzalez Pro Se
Movant(s):
U.S. BANK NATIONAL Represented By James F Lewin Kelsey X Luu
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
SPECIALIZED LOAN SERVICING LLC
vs DEBTOR
Docket 61
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ananda Chandrasekera Alahakoon Represented By
Jeffrey J Hagen
Joint Debtor(s):
Chitra Ranjini Niyarepola Represented By Jeffrey J Hagen
Movant(s):
Specialized Loan Servicing LLC Represented By
Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PARK PLACE ESTATES HOMEOWNERS ASSOC
vs DEBTOR
Docket 23
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Relief is granted pursuant to 11 U.S.C. 362(d)(4), and this court expressly finds that the debtors participated in a scheme to hinder, delay or defraud the movant. In addition, pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
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For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jaime Carrillo Pro Se
Joint Debtor(s):
Genevive Cardenas Pro Se
Movant(s):
Park Place Estates Homeowners Represented By Peter L Duncan
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
10:00 AM
COMPASS ALTERNATIVE INVESTMENTS, LLC
vs DEBTOR
Docket 22
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the issues raised by the underlying papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eurenie Fahmy Pro Se
Movant(s):
Compass Alternative Investments, Represented By
Julian K Bach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PREMIUM ASSIGNMENT CORP
vs DEBTOR
Docket 193
- NONE LISTED -
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Premium Assignment Corporation II Represented By
Brian A Paino
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
[2013 TOYOTA PRIUS VIN: JTDZN3EU4D3195448]
TOYOTA MOTOR CREDIT CORP
vs DEBTOR
Docket 14
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Antonio G. Ramos Jr. Represented By Julie J Villalobos Kelsey X Luu
Joint Debtor(s):
Marietta O. Ramos Represented By Julie J Villalobos Kelsey X Luu
Movant(s):
TOYOTA MOTOR CREDIT Represented By Mark D Estle
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Antonio G. Ramos Jr. Represented By Julie J Villalobos Kelsey X Luu
Joint Debtor(s):
Marietta O. Ramos Represented By Julie J Villalobos Kelsey X Luu
Movant(s):
TOYOTA MOTOR CREDIT Represented By Mark D Estle
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
[2013 TOYOTA PRIUS; JTDZN3EUXD3240036]
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).]
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Antonio G. Ramos Jr. Represented By Julie J Villalobos Kelsey X Luu
Joint Debtor(s):
Marietta O. Ramos Represented By Julie J Villalobos Kelsey X Luu
Movant(s):
TOYOTA MOTOR CREDIT Represented By Mark D Estle
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
BRECKENRIDGE PROPERTY FUND 2016, LLC
vs DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
Note: Although the tentative ruling is to grant relief for cause under 11 U.S.C. 362(d)(1) and alternatively based on 11 U.S.C. 362(d)(2), the movant has not established that a prepetition unlawful detainer judgment and writ of possession were obtained, so it has not established that it is also entitled to relief under In re Perl, 811 F.3d 1120 (9th Cir. 2016). Judge Bason does not follow In re Smith, 105 B.R. 50 (Bankr. C.D. Cal. 1989). Accordingly, the tentative ruling is that these alternative arguments are rejected. See dkt. 7, p.6, last two paragraphs.
If appearances are not required at the start of this tentative ruling but you wish
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to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alex Min Kim Pro Se
Movant(s):
Breckenridge Property Fund 2016, Represented By
Sam Chandra
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 8
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Miguel Ortiz Represented By
Luis G Torres
Movant(s):
Miguel Ortiz Represented By
Luis G Torres Luis G Torres Luis G Torres Luis G Torres
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA
vs DEBTOR
Docket 55
Tentative Ruling for 1/30/18 (same as 1/9/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling. This matter was continued to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under
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11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rachel Ramos Herron Represented By
Andrew Edward Smyth
Movant(s):
HSBC Bank USA, National Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 29
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 12/19/17 hearing on the motion, this court continued the hearing at the request of the parties to provide them additional time to negotiate the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
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Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alicia M. Olivero Ramirez Represented By Kenumi T Maatafale
Movant(s):
Wilmington Savings Fund Society, Represented By
Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SRIDHAR EQUITIES, LLC
vs DEBTOR
Docket 10
Supplemental Tentative Ruling for 1/30/18:
This court has reviewed the movant's supplemental attachment 3 (dkt. 35) and the attached documents including the broker's opinion of value. This court notes that there is no proof of service of that document on the debtor (let alone proof of hand delivery or other service that would be received prior to the hearing). In other respects the tentative ruling set forth below remains unchanged.
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 1/23/18 hearing, this court continued the matter at the debtor's request for additional time to secure the assistance of counsel or otherwise address the issues raised by this motion. There is no tentative ruling, but the parties should be prepared to address the issues raised by the underlying papers, including the debtor's responses (dkt. 19, 25) and the creditor's reply (dkt. 29).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling is to overrule the debtor's objections (dkt. 19, 25) to the extent that the debtor asserts a lack of adequate notice, but the parties should be prepared to address the debtor's other arguments. As for the alleged lack of notice, the debtor admits receiving notice on 1/6/18 which is over two weeks prior to this hearing and this court routinely shortens time on this type of motion (when there have been unauthorized transfers as part of an apparent scheme to hinder, delay or defraud a creditor), and the debtor has not established any undue prejudice arising from the current time frame.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eurenie Fahmy Pro Se
Movant(s):
Sridhar Equities, LLC Profit Sharing Represented By
Catherine Schlomann Robertson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, NA vs
DEBTOR
Docket 51
Revised Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 1/23/18 hearing, this court continued the matter at the debtor's request for more time on the record and in the debtor's late-filed opposition (dkt. 55). This court also directed the debtor, no later than 1/26/18, to file a declaration with evidence of being current on payments or to pay the $5,051.84 adequate protection payment. No such declaration appears on the docket, so the parties should be prepared to address whether the debtor timely made the payment.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/23/18:
10:00 AM
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kwame Boakye Represented By William J Smyth
Movant(s):
U.S. BANK, NA AS LEGAL TITLE Represented By
Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Represented By William J Smyth
11:00 AM
Docket 149
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling but the parties should be prepared to address the following. Conceptually there is no reason why debtors in a chapter 7 case could not seek a modification of a loan and then, if the modification were granted and that made it feasible to pay their debts in chapter 13, seek to convert the case back to chapter 13. But (1) typically in such a situation the debtors, at a minimum, would have to reimburse the chapter 7 trustee and counsel for all expenses and (2) meanwhile the debtors have duties including cooperating with the Chapter 7 Trustee, and the Trustee has asserted (dkt.
163) that the debtors have not cooperated, so it would be inequitable to permit the debtors to proceed with the protections offered by this court's loan modification program while the debtors are being uncooperative. In addition, this court is concerned about fairness to the Trustee's real estate broker, and possible chilling of any attempted sale.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Richard A Sorci Pro Se
11:00 AM
Joint Debtor(s):
Judy E Sorci Pro Se
Trustee(s):
Timothy Yoo (TR) Represented By Carmela Pagay
11:00 AM
Adv#: 2:17-01534 Federal Insurance Company v. Mainolfi
Status conference re: Complaint to determine
non-dischargeability of debt pursuant to 11 U.S.C.
§ § 523(a)(2)(A), 523(a)(4), and 523(a)(6)
Docket 1
- NONE LISTED -
Debtor(s):
Frank Mainolfi Represented By Nicholas M Wajda
Defendant(s):
Frank Mainolfi Pro Se
Plaintiff(s):
Federal Insurance Company Represented By David Billings
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 244
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Jay Marshall Represented By Richard H Gibson Stephen L Burton Douglas A Crowder
Movant(s):
Randy Simon Represented By Stephen L Burton David R. Weinstein
Trustee(s):
Richard K Diamond (TR) Represented By
Uzzi O Raanan ESQ
11:00 AM
Steven J Schwartz
11:00 AM
Adv#: 2:17-01509 Harris v. Randall et al
2. Conspiracy to commit fraud; 3. Negligence; 4. Breach of Fiduciary Duty;
5. Conversion; 6. Violation of truth in lending laws; 7. Intentional infliction of emotional distress; 8. Negligent infliction of emotional distress; 9. Set side fraudulent transfers
Docket 6
- NONE LISTED -
Debtor(s):
Kendra Randall Represented By Kahlil J McAlpin
Defendant(s):
Tracie Love Pro Se
Paul A. Lopez Pro Se
Paul A. Lopez Separate Property Pro Se
Craig T. Kirkpatrick Pro Se
Craig T. Kirkpatrick Living Trust Pro Se
Martin Seaton Pro Se
Sheila Seaton Pro Se
Seaton Revocable Trust Pro Se
John De Hart Pro Se
Chicago Title Pro Se
11:00 AM
Provident Title Pro Se
John Lett Escrow Company Pro Se
Standard Mortgage Financial Pro Se
Zenith Financial Mortgage Pro Se
Westar Financial Group, Inc. Pro Se
Rick Dela Rama Pro Se
Kendra D Randall Pro Se
Plaintiff(s):
Henry D Harris Represented By George M Halimi
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:17-01509 Harris v. Randall et al
Docket 1
Debtor(s):
Kendra Randall Represented By Kahlil J McAlpin
Defendant(s):
Tracie Love Pro Se
Paul A. Lopez Pro Se
Paul A. Lopez Separate Property Pro Se
Craig T. Kirkpatrick Pro Se
Craig T. Kirkpatrick Living Trust Pro Se
Martin Seaton Pro Se
Sheila Seaton Pro Se
Seaton Revocable Trust Pro Se
John De Hart Pro Se
Chicago Title Pro Se
Provident Title Pro Se
11:00 AM
John Lett Escrow Company Pro Se
Standard Mortgage Financial Pro Se
Zenith Financial Mortgage Pro Se
Westar Financial Group, Inc. Pro Se
Rick Dela Rama Pro Se
Kendra D Randall Pro Se
Plaintiff(s):
Henry D Harris Represented By George M Halimi
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:16-01494 Ariaasil v. Ghazalian
of the Bankruptcy Code; Demand for Trial by Jury
fr. 1/17/17, 4/11/17, 5/23/17, 8/22/17,10/17/17, 11/14/17, 12/5/17, 12/19/17
Docket 1
Debtor(s):
Urik Gagarin Ghazalian Represented By Robert Reganyan
Defendant(s):
Urik Gagarin Ghazalian Represented By Robert Reganyan
Plaintiff(s):
Mohammad Amin Ariaasil Represented By Frank E Marchetti
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:17-01494 Avery v. Oh et al
C. § 3439 et seq.] fr. 12/5/17, 12/12/17
Docket 1
Debtor(s):
Summer Joy Lake Represented By Veronica T Barton
Defendant(s):
Sanhwa Oh Pro Se
Sunhwa Oh Pro Se
Michelle Sunhwa Kwak Pro Se
Plaintiff(s):
Wesley H. Avery Represented By David M Goodrich
Trustee(s):
Wesley H Avery (TR) Represented By David M Goodrich
11:00 AM
Adv#: 2:17-01174 Stardust Vacation Club and Americana Vacation Club v. MacMillan
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Stardust Vacation Club and Represented By Bruce Grego
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
11:00 AM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan
fr. 06/13/17, 12/19/17
Docket 1
Tentative Ruling for 1/30/18:
Appearances required. The court has reviewed the parties' joint status report (adv. dkt. 24) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (docket number(s) 22, and at the hearing on 12/19/17).
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/13/18
Continued status conference: 2/27/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Trial date and pre-trial schedule: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
11:00 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the status of this adversary proceeding.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 12) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
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Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/6/17. Expert(s) - deadline for reports: 11/20/17
Expert(s) - discovery cutoff (if different from above): 12/4/17 Dispositive motions to be heard no later than: 1/25/2018 Joint Status Report: 12/5/17
Continued status conference: 12/19/17 at 11:00 a.m. Trial date and pre-trial schedule: To be set at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C Vanderhoof
Trustee(s):
Rosendo Gonzalez (TR) Represented By
11:00 AM
James A Dumas Jr
11:00 AM
Adv#: 2:17-01551 Wyndham Vacation Resorts, Inc. v. Martin
fr. 01/09/18
Docket 1
Tentative Ruling for 1/30/18:
Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address (a) why they failed to file the required status report, (b) why the motions for joint administration/consolidation of the two closely related adversary proceedings have not been prosecuted, and (c) the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not formalize the
11:00 AM
fact that the pending mediation includes this adversary proceeding by issuing an order to mediate this matter together with related adversary proceeding (2:17-ap-01229-NB)? The tentative ruling is to direct counsel for the defendants to lodge a proposed order to that effect.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C Vanderhoof
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
1:00 PM
Docket 29
Debtor(s):
Tarsin Mobile Inc Represented By David L. Kagel
Movant(s):
United States Trustee (LA) Represented By Dare Law
1:00 PM
Docket 72
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
Movant(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
1:00 PM
Hrg re: Debtors' motion to vacate and set aside order dismissing debtors chapter 11 bankruptcy case
Docket 65
Appearances required. As set forth in this court's order (dkt. 65) setting this hearing, subject to any opposition at this hearing the tentative ruling is to grant the motion, vacate the dismissal of this case, and set a hard deadline for the debtor to file an amended plan and amended disclosure statement. The parties should be prepared to address what that deadline should be.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Steve O Chong Represented By Lionel E Giron Kevin Tang
Joint Debtor(s):
Edwina Theresa Chong Represented By Lionel E Giron Kevin Tang
1:00 PM
Status Conference re: Chapter 11 Case
fr. 06/13/17, 6/20/17, 8/22/17, 10/3/17, 12/5/17,
1/9/18
Docket 1
Tentative Ruling for 1/30/18:
Appearances required. If this court is persuaded to vacate the dismissal (see calendar No. 3, 1/30/18 at 1:00 p.m.), the tentative ruling will be to continue the status conference to March 6, 2018 at 1:00 p.m. and set a hard deadline of March 30, 2018 for the debtors to file an amended plan and disclosure statement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement: At the hearing on 12/5/17, this court cautioned debtors' counsel about the possibility of dismissing this case for failure to prosecute. Although the debtors have reached an agreement with
1:00 PM
Sheffield Financial (dkt. 51, 53), it does not appear that the debtors have reached agreements with any of their other secured creditors (see dkt. 45, Ex.H, at PDF p.14, Endnotes 2B-2D), despite this case having been pending for nearly eight months. As a result, counsel for the debtor should address why this court should not dismiss this case.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: If this case is not dismissed, this court will set a hard deadline for the debtors to negotiate agreements with their secured creditors regarding plan treatment.
Continued status conference: If this case is not dismissed, this court will set a date for a continued status conference.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement: The tentative ruling is not to impose at this time a deadline for filing amended documents, but to caution debtor's counsel that if this case is not adequately prosecuted then it may be dismissed.
Deadlines/dates. This case was filed on 5/10/17.
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Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: This court anticipates that at the continued status conference (set forth below) this court will set a new, hard deadline shortly thereafter for filing revised drafts of the plan and disclosure statement.
Continued status conference: 1/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement (dkt. 44, 45). There is a blank page in the plan that should be deleted (dkt. 44 at PDF p.11).
Exhibit F (dkt. 45 at PDF p.12) appears to contain some errors: line "1" lists general unsecured claims of $64,716, the source for which is listed as dkt.10, plus another $7,970.39 in line "8" from a "Continuation Sheet"; but dkt.10 is not a listing of creditors (it is a notice of commencement of this case and the meeting of creditors), the only bankruptcy Schedule E/F that appears on the docket (dkt.1) lists general unsecured claims of $64,672.60, and there is no "Continuation Sheet" attached.
The debtor discloses (dkt. 45, Ex.H, at PDF p.14, Endnotes 2B-2E) that agreements have yet to be reached with various secured creditors; and therefore it appears appropriate to defer any solicitation of votes. The debtor's counsel should be prepared to address how long it is expected to
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take before agreements are reached or unresolved disputes are ready for presentation to this court for decision.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: 11/14/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions per the above tentative ruling and any matters discussed at the status conference.
Continued status conference: 12/5/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Orders. The debtors' counsel should be prepared to address why certain orders have not been lodged, namely, (i) the order on the debtors' motion to value their personal property (dkt. 27), which motion was granted on 7/11/17, and (ii) the order on the debtors' application to employ general bankruptcy counsel (dkt. 22).
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/3/17 at 1:00 p.m. No written
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status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Grant the budget motion and continue the status conference as set forth below. Appearances are not required on 6/20/17.
Current issues.
Budget motion. This court mistakenly ruled at the status conference on 6/13/17 that the budget motion would be granted on a final basis, not realizing that the 6/13/17 hearing on that motion had been vacated because an amended motion had been filed and set for hearing on this 6/20/17 date. See dkt. 16, 20. Notwithstanding that error, no opposition has been filed to the budget motion, and the tentative ruling is to issue an order after this hearing granting the amended motion on a final basis (the debtor is directed to lodge a proposed order within seven days after this hearing date).
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (dkt. 23) - to be served by 8/20/17
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/22/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
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Tentative Ruling for 6/13/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves
but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion. The debtors' amended budget motion filed on 6/1/17 (dkt. 20) appears to have only partially cured the defects pointed out by the U.S. Trustee in its opposition (dkt. 19) to the initial budget motion (dkt. 16). First, the debtor and/or spouse apparently has income from a property or business but has failed to provide a breakdown of gross receipts, ordinary and necessary business expenses, and calculation of the resulting monthly net income. See dkt. 20 at PDF p.7 (bankruptcy schedule "I" line 8a).
Second, the budget motion includes both (a) bankruptcy schedules "I" and "J" and (b) a spreadsheet showing what appears to be largely or entirely duplicative data. Which one controls (or are both the same)?
Third, the notice of the amended motion incorrectly provides that oppositions are due 14 days prior to the hearing on the motion, although the motion was set on shortened notice pursuant to this court's posted Procedures. For this reason, this court intends to hear oppositions to the amended budget motion at the hearing on 6/13/17.
The tentative ruling is to grant the budget motion on an interim basis, based on the proposed budget spreadsheet (not bankruptcy schedules "I" and "J"), with a deadline of 6/14/17 to file a supplemental declaration providing a thorough breakdown of gross revenues, expenses and calculation of net income for each property/business, and with a continued hearing on 6/20/17 at 1:00 p.m.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
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Continued status conference: 6/20/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Steve O Chong Represented By Lionel E Giron Kevin Tang
Joint Debtor(s):
Edwina Theresa Chong Represented By Lionel E Giron Kevin Tang
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fr. 3/3/15, 3/31/15, 4/28/15, 5/26/15, 6/9/15, 7/7/15, 07/28/15, 9/1/15, 9/22/15, 11/17/15, 12/15/15,
1/19/16, 2/23/16, 3/22/16, 5/31/16, 7/19/16, 9/27/16,
11/29/16, 1/10/17, 4/25/17, 6/20/17, 10/17/17
Docket 9
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's status report (dkt. 304) and the notice (dkt. 307) filed by Bayview Loan Servicing, LLC ("Bayview). The parties should be prepared to address the issues raised by those papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's post-confirmation status report (dkt. 298) and has no issues to raise sua sponte at this time. The tentative ruling is to continue this status conference to 1/30/18 at 1:00 p.m.
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 10/17/17 at 1:00 p.m. in view of the debtors' status report (dkt. 292). Appearances are not required on 6/20/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/25/17:
Continue to 6/20/17 at 2:00 p.m., to provide the debtors with time to seek entry of a final decree in this case, or such other remedies as may be necessary or appropriate, in view of the confirmed Joint Chapter 11 Plan (dkt. 270) and the unopposed motions to approve the compromise with Butler Capital (dkt. 277-80). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
Tentative Ruling for 1/10/17:
Continue to 4/25/17 at 2:00 p.m. Appearances are not required on 1/10/17.
Reasons: This court has issued its order confirming the debtors' Joint Chapter 11 Plan (dkt. 270) and this court is not aware of other issues that would warrant a status conference at this time.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
Tentative Ruling for 1/10/17:
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Continue to 4/25/17 at 2:00 p.m. Appearances are not required on 1/10/17.
Reasons: This court has issued its order confirming the debtors' Joint Chapter 11 Plan (dkt. 270) and this court is not aware of other issues that would warrant a status conference at this time.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The tentative ruling, subject to any objections at the hearing and further subject to consideration of whether re-balloting is required, is to provide the debtors with one final opportunity to correct the issues set forth below with the disclosure statement (dkt. 250) and the debtors’ proposed plan (dkt. 249).
The principal documents reviewed by this Court are the plan, disclosure statement, and supporting documents (dkt. 249-254), Butler Capital’s objection (dkt. 256), and the debtors’ reply (dkt. 257).
Sequence of property sales.
The sequence of property sales in Exhibit H of the Disclosure Statement is not clear. Do the properties have to sell in a particular order? Are the debtors obligated to sell whatever they can as soon as they can and/or in whatever sequence and combinations will maximize value and/or speed? The tentative ruling is that the debtors must clarify Exhibit H either to demonstrate the correct order of sale or that the plan does not require sale in a particular order.
Escrow Deadlines.
From this Court’s review of the amended Exhibit H, it appears that the debtors intend to have one year from the projected effective date of December 1, 2016 in which to open escrow, and if any properties that meet that condition later fall out of escrow, the debtors have sixty days to open a
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new escrow, with an outside period of 18 months from December 1, 2016 (or earlier, if an escrow is opened earlier) in which all escrows must close.
However, the way that this is written in the plan is difficult to understand. Particularly, Exhibit H, pp. 4:25-5:1, is unclear, especially because the projected effective date of the plan is not listed until Exhibit H, Page 10. The tentative ruling is that the debtors must revise the language in the plan to clarify these provisions.
Provisions for relief from default.
The sentence on p.5:14-19 regarding relief from default remains confusing. Is default exclusively tied to proceeds given to Bayview? Can other parties declare default? The tentative ruling is that these provisions must be revised to be written in "plain" english to better reflect the debtors' intention.
"Good cause" for relief from default.
The sentences on p.6:10-14 regarding the standard for cause for relief from default are confusing. The debtors list as a possible standard the same standard that would apply to a debtor showing adequate protection in defending against a motion for relief from the automatic stay, but then they state that alternative standards may be proposed by the parties or the Court, if the Court deems some other standard more reasonable under the circumstances. How would this court make that determination? The tentative ruling is that the debtors must clarify these provisions so they may be more equitable to creditors.
Feasibility of interest payments.
In its Tentative Ruling for 9/27/16, this Court addressed the issue of the feasibility of the debtors’ proposed interest payments to Bayview (Exhibit H, p.7:14-16) without some sort of cash infusion at the beginning of the plan.
Exhibit H does not appear to have been explicitly amended to address the Court’s concerns. The tentative ruling is that the plan must be amended to provide for a cash infusion, and to make the failure to provide such infusion, or failure of the debtors immediately to provide evidence of that infusion, an event of default. In addition, the parties should be prepared to address whether Exhibit H should include an explanation of Butler Capital’s treatment under the plan, in light of Butler Capital’s objection to confirmation (dkt. 256), and the debtors’ reply (dkt. 257).
In addition, the debtors should be prepared to address the status of the proposed sale of the Foasberg Dry Cleaning business and whether, after
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payment of creditors to that business have been paid, the proceeds will constitute an adequate cash infusion to support the proposed interest payments.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan: The tentative ruling is to set a deadline of 12/13/16 for the debtor to lodge proposed orders approving the disclosure statement and confirming the plan and to file and serve on Bayview, the Receiver (for Hilma Foasberg), and the debtors' equity holders (i) notices of lodgment, (ii) an amended plan as set forth above (with any additional changes ordered at the hearing) and (iii) a redline showing the changes. If those documents appear accurately to reflect this court's rulings and otherwise to be acceptable, and if there are no objections to those changes by 12/20/16, then this court intends to issue orders approving the disclosure statement and confirming the plan. Otherwise, this court intends to hold a telephonic hearing.
Continued status conference: 1/10/16 at 2:00 p.m. No written status report is required. (This likely will be continued for 60 days or so if the plan is confirmed.)
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 9/27/16
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The tentative ruling is to approve the disclosure statement (dkt. 228) and confirm the debtors' proposed plan (dkt. 227) if and only if the debtors make the following modifications/interlineations and can provide a cash
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infusion or other sufficient evidence of feasibility as set forth below. The principal documents reviewed by this court are the plan, disclosure statement, supporting documents (dkt. 229-231), Bayview's objections (dkt. 240), the ballot summary (dkt. 242), the debtors' reply (dkt. 243), and Mr. Foasberg's supplemental declaration (dkt. 244).
Explicit incorporation of Exhibit H into the plan
The tentative ruling is that either Exhibit H itself, or the plan, or the order confirming the plan, or all three, must make it explicit that Exhibit H is incorported into the plan (although it is only attached to the disclosure statement). That appears to be the intent of the plan, if not its actual terms, because it references Ex.H and vice versa, but this should be more explicit.
"Hard" dates for the close of escrow
The debtors' current proposed plan adopts the previously ordered deadlines that for each property the debtors must be in escrow one year after confirmation (dkt. 228, Ex.H, p.4:24-25), and close escrow 18 months after escrow is entered (id., p.5:26-28), and also proposes (i) that they have 60 days from the failure of any escrow to re-open an escrow if they find a new buyer (id., p.5:2-4) and, apparently, (ii) that each new escrow opens a new 18 month period (id., p. 5:26-28). The tentative ruling is that the former condition meets the standards for cramdown (fair and equitable etc.) but the latter does not.
The tentative ruling is further that the debtors could cure this problem by expressly providing two things. First, the 18 month period would run from the first date when any escrow is opened as to a given property (or, for any escrow that is pending on the Effective Date, 18 months from the Effective Date). Second, to prevent possible evasion of the deadlines, sales would need to be all cash at closing (no deferred payments; no transfers of equity in lieu of cash; etc.).
Confusing additional preconditions to any default
The debtor apparently seeks to impose an additional precondition (dkt.
228, Ex.H, p.5:12-25, the "Additional Precondition") that before a party in interest may send a notice of default it must show that the payment of its claim is actually threatened after taking into account the likely proceeds from whatever properties actually are in escrow. First, as Bayview points out, this appears to place an undue burden on creditors.
Second, the Additional Precondition appears to be unnecessary because the debtors have an alternate remedy. If the debtor is actually able
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to pay creditors from the pending sales of other properties, and those sales are sufficiently likely to occur quickly, then the debtor can argue as much in its motion for relief from default (dkt. 228, Ex.H, pp. 5:28-6:6, the "Relief From Default Provisions").
Accordingly the tentative ruling is that the Additional Preconditions are not fair and equitable and must be struck from the plan.
Relief from default
The debtor has presented evidence regarding the difficulty of selling the properties, due in large part to environmental issues. Based on that evidence, it is difficult to tell in advance, for example, (i) what defaults could reflect a lack of diligence by the debtor, as opposed to genuine obstacles to closing due to environmental issues, or (ii) whether the debtor is unreasonably seeking to eliminate all possible environmental issues instead of selling at a moderate discount to a buyer who is willing to address some such issues. In other words, there may be good reasons for the debtor to be able to seek relief from default, but it is difficult if not impossible to know in advance, so the debtor appears to have proposed a reasonable mechanism to place this issue before this court, subject to the familiar standards for relief from the automatic stay.
Bayview has not presented contrary evidence or a suitable alternative mechanism for dealing with these issues. Accordingly, the tentative ruling is that the Relief From Default Provisions are fair and equitable and otherwise satisfy the requirements for confirmation under the circumstances.
Reinstatement
The debtors do not disagree with Bayview's proposed language: that "any [currently pending] foreclosure [proceedings with respect to] the subject properties will be rescinded" as opposed to stating that the loans will no longer be in default. The tentative ruling is that the plan must be amended to make this change (see dkt. 228, Exhibit H, p. 6, dkt. 240, p.12:5-8, dkt. 243, p. 8:10-12).
Interest payments
The debtors' plan proposes to make monthly interest-only payments of
$5,963.41 and $3,794.45 to Bayview until it is paid in full from the sale of the real properties (dkt. 228, Ex. H, p.7:2-4). This raises two issues: (i) whether the proposed rate of interest is appropriate and (ii) whether the proposed payments are feasible (11 U.S.C. 1129(a)(11)).
Appropriate interest rate
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The debtors have proposed interest rates of 7.5% (dkt. 228, Ex.H,
p.7:2-4). This is somewhat higher than the rates in the existing promissory notes (dkt. 243, pp.8:28-9:4).
As stated in Judge Bason's posted procedures,
Judge Bason has expressed the view in various cases that when dealing with relatively small dollar amounts (for which the cost of presenting expert testimony as to interest rates would be prohibitive) the analysis in Till v. SCS Credit Corp., 541 U.S. 465 (2004), is appropriate, and conversely when dealing with larger dollar amounts the Till analysis probably is not appropriate, and one acceptable method for experts to opine as to the appropriate interest rate is the method described in In re Boulders on the River, Inc., 164 B.R. 99 (9th Cir. BAP 1994); see In re N. Valley Mall, LLC, 432 B.R. 825 (Bankr. C.D. Cal. 2010) (discussing continued viability of Boulders on the River).
In this case it does not appear to be cost-effective for either party to incur the expense of expert testimony as to interest rates (i.e., the type of expert testimony addressed in Boulders on the River and N. Valley Mall). In any event neither party has chosen to do so. So the tentative ruling is to apply the Till analysis or something comparable.
Under that analysis, courts typically apply an interest rate of 1% to 3% over prime, although the starting point might be different (higher) in situations such as this when the properties have environmental issues, so this court also looks to the contract rate used by the parties. This court also takes into consideration that payment to Bayview has been much delayed, and the debtors are proposing interest-only payments (as opposed to amortizing payments), but on the other hand Bayview's claims are protected by a large equity cushion, and national interest rates are near historic lows.
Under the foregoing analysis the debtors have made a sufficient prima facie showing that their proposed interest rates are within the range of what is permissible. Bayview has not rebutted that showing. Therefore the tentative ruling is to approve the proposed interest rates.
Feasibility
The supplemental declaration of Mr. Foasberg indicates that he intends to sell the dry cleaning businesses that have been failing to pay rent to the debtors for several months (dkt. 244, p. 2). The problem is that it is not at all
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clear how the debtors intend to make plan payments prior to the sale of the business given their recent performance, i.e., lack of feasibility (11 U.S.C. 1129(a)(11)). Their MOR for August (dkt. 241, p. 21), states that they only hold unrestricted cash of $2,044.28.
It appears that the debtors will need a cash infusion if this court is to make a finding of feasibility. In addition, testimony will be needed (or at least an offer of proof subject to cross-examination) to support the debtors' assertion that any given dollar amount is adequate to show feasibility.
To the extent that this or any other issue requires testimony, this court may accept an offer of proof or brief testimony at today's hearing, or may set a continued hearing for the presentation of evidence and cross-examination. The parties should be prepared to address timing and procedures.
The tentative ruling is that the plan must be amended to provide for such a cash infusion, and to make the failure to provide such infusion, or failure of the debtors immediately to provide evidence of that infusion, an event of default.
Preservation of net revenues/"set aside" for possible environmenal remediation
The plan apparently contemplates that if the debtors have their projected cash flow then most net revenues would be used to fund a "set aside" each month for possible environmental remediation of their properties estimated at $5,000 per month per debtor. The tentative ruling is that for the plan to be fair and equitable (and otherwise meet the standards for confirmation) any such funds must be subject to the following conditions.
First, they must be actually paid: if the debtors make any expenditures out of the ordinary course of business, except to fund such a set aside or pay for environmental remediation, then it seems that must be a default under the plan for the plan to be fair and equitable. Second, if the debtors fail to provide monthly accounting of such funds, including a bank account statement, then that would have to be a default under the plan for it to be fair and equitable.
Form of confirmation order
The tentative ruling is that, pursuant to LBR 3020-1(b) the confirmation order shall include the following:
Within 120 days of the entry of this order, the debtors shall file a status report explaining what progress has been made toward consummation of the confirmed plan of reorganization. The initial report shall be served on the United States trustee, the 20 largest unsecured creditors, and those
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parties who have requested special notice. Further reports shall be filed
every 120 days thereafter and served on the same entities, unless otherwise ordered by the court. A postconfirmation status conference will be held on January 17, 2017 at 2:00 p.m.
If this case is converted to one under chapter 7, the property of the reorganized debtor shall be revested in the chapter 7 estate.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan: The tentative ruling is to set a deadline of 10/4/16 for the debtor to lodge proposed orders approving the disclosure statement and confirming the plan and to file and serve on Bayview, the Receiver (for Hilma Foasberg), and the debtors' equity holders (i) notices of lodgment, (ii) an amended plan as set forth above (with any additional changes ordered at the hearing) and (iii) a redline showing the changes. If those documents appear accurately to reflect this court's rulings and otherwise to be acceptable, and if there are no objections to those changes by 10/11/16, then this court intends to issue orders approving the disclosure statement and confirming the plan. Otherwise, this court intends to hold a telephonic hearing.
Continued status conference: 10/18/16 at 2:00 p.m. No written status report is required. (This likely will be continued for 60 days or so if the plan is confirmed.)
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/27/16
This court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 7/19/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.",
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"Instructions/Procedures").
Current issues
Background
These cases were filed in January of 2015. The debtors have filed several proposed plans and disclosure statements, the latest of which are dated 6/21/16 (dkt. 217, 218).
They blame the lack of a confirmed plan of reorganization on the fact that they own several parcels of real estate that may require extensive environmental remediation, and therefore are difficult to sell. The primary outstanding issue in this case is whether their proposed joint plan must provide for a more expedited sales process than the one they have proposed.
That is primarily a confirmation issue (under, e.g., 11 U.S.C. 1129(a)(3) (good faith), (a)(11) (feasibility), and, to the extent "cramdown" is required, (b)
(no unfair discrimination, and being fair and equitable, with respect to each impaired, non-consenting class)). Typically, however, the bankruptcy courts consider prior to any confirmation hearing whether a plan is so deficient on its face that sending it out for voting is not worth the resulting expense, delay, and potential confusion.
In addition, the disclosure statement must contain "adequate information" under 11 U.S.C. 1125(a). Again, that is generally an issue for a later stage - the disclosure statement hearing - but bankruptcy courts often address as a preliminary matter whether the disclosure statement is so deficient that no such hearing should be set. That is particularly important given Judge Bason's practice of setting combined hearings on the disclosure statement and plan confirmation. Therefore it is appropriate to address at this stage, initially, whether the debtor has adequately disclosed the potential environmental issues and analyzed the nature of possible remediation, possible approaches that could maximize the sale proceeds balanced against expediting the time for sale, etc.
At the status conference on 5/31/16 this Bankruptcy Court established procedures for the parties to address these issues on a preliminary basis - to determine whether to authorize the debtor to mail a voting package to creditors. The debtors have filed the declaration of their real estate broker Mr. O'Healy (dkt. 220). No other parties in interest have filed any contrary evidence, although creditor Bayview Loan Servicing, LLC ("Bayview") has filed an "opposition" to the proposed joint plan (dkt. 222), which includes an
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objection to Mr. O'Healy's declaration. The debtors have filed a reply (dkt. 223).
Tentative Rulings
The tentative rulings are as follows, taking into account the amendments that the debtors propose in their reply (dkt. 223) (and solely for the limited purpose described above - i.e., for authorizing the debtor to mail its voting package - and without prejudice to objections at the combinded hearing on adequacy of the disclosure statement and whether to confirm the proposed joint plan):
declaration.
Evidence: Overrule the objections to Mr. O'Healy's
Timing: Overrule Bayview's objection as to the timing of the
sales, except that the timing must be clarified regarding how long escrow can be open before it can be said to have "fail[ed] to close" (dkt. 218-7, Disclosure Statement p.39:3, which is Ex.H at 5:3); and how long the debtors would after any new escrow were to open before it too would have failed to close. On the present record, this Bankruptcy Court is not persuaded that the "drop dead" dates proposed by Bayview are essential, and that the voting package should not be sent. The debtors argue, with supporting evidence, that "[i]f Bayview were to foreclose, it would face the same problems facing Debtors because the hurdles to selling these properties would not be eliminated if someone else were to sell them." (Dkt. 223, p.6:10-12.)
The foregoing should not be interpreted as a ruling for confirmation purposes. It may be necessary or appropriate, in order to confirm any plan, to establish either "drop dead" dates or some mechanism to assess whether the debtors have been dragging their feet and whether it is fair and equitable to grant additional time to engage in the sale process.
Default terms: Sustain Bayview's objections regarding the proposed default terms, because of the difficulty (if not impossibility) that Bayview would have in filing a declaration under penalty of perjury as to the debtors' funds and the status of the debtors' sales. The parties should be prepared to address alternative default terms.
Reinstatement of loans: Overrule Bayview's objections regarding the reinstatement of its loans.
Other issues: The debtors' Exhibit H is needlessly repetitive (this Court will review the details orally at the hearing). In addition, the parties
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appear to assume that the automatic stay will continue to apply (see, e.g., dkt. 218-7, Disclosure Statement p.89:9, which is Ex.H at 5:9) but the "boilerplate" language in the plan provides for property to revest in the reorganized debtors on the Effective Date (dkt. 217, p.5, part IV.B.) which generally terminates the automatic stay (11 U.S.C. 362(c)(1)). If the debtors intend to provide for the automatic stay to continue (either by eliminating revesting, or by some other means) then they must disclose that clearly, and establish that they legally can do so.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan (dkt.217)/Disclosure Statement (dkt. 218): This court anticipates setting the following deadlines: 7/26/16 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference; 7/29/16 for the plan proponent to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; 9/27/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 9/27/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/19/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/31/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues.
These cases have been pending since 1/23/15 - a very long time. This Court has reviewed the debtor's (belated) status report (dkt. 213). The parties should be prepared to address the outline of a plan proposed by the debtor and any associated deadlines.
Deadlines/dates. This case was filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: See above
Continued status conference: 9/6/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/22/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. On 3/22/16, this court continued this matter to allow the debtors and Bayview (the primary secured creditor) to negotiate agreeable terms. The parties should be prepared to address whether they have resolved their dispute or, if not, how they intend to proceed.
Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: Subject to the foregoing issues: 4/6/16 deadline for the plan proponent to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; and 5/31/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 5/31/16 at 1:00 p.m. No written
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status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/23/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 193) and disclosure statement (dkt. 194) (and redline, dkt. 195). The debtors now propose a one year deadline after the effective date to have the subject properties "under contract and in escrow" (see, e.g., dkt. 194-7, p. 6:1-6). Is this agreeable to Bayview Loan Servicing, LLC? Are all major constituencies in agreement regarding the amended plan? Are there any other issues that need to be resolved prior to setting a date for a hearing on approval of the disclosure statement and confirmation of the plan?
Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: Subject to the foregoing issues: 3/2/16 deadline for the plan proponent to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; and 4/26/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 4/26/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for
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disposition at this hearing.
Revised Tentative Ruling for 1/19/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Progress toward confirmation. At the 11/17/15 status conference, the debtors stated that they would file an amended, red-lined version of their plan and disclosure statement correcting certain issues. When do the debtors anticipate filing these?
Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement (dkt. 174, 175): The parties should be prepared to discuss the debtors' exit strategy and deadlines for any further sale motions and/or an amended plan and amended disclosure statement.
Continued status conference: 2/23/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/19/16:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush
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David R Haberbush
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fr. 01/23/18
Docket 297
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference (calendar no. 2, 1/30/18 at 2:00 p.m.).
Tentative Ruling for 1/30/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
Movant(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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5/23/17, 7/11/17, 8/22/17, 10/03/17, 1/23/18
Docket 7
Revised Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
(1) Current issues: estimating Mr. Britton's claim
At the hearing on 10/3/18 this court contemplated that after the debtor filed its motion (dkt. 297) for an order estimating the claim of creditor Layne Leslie Britton then this court would set a briefing schedule. The tentative ruling is to set the briefing schedule set forth below.
This court notes that the parties have already briefed, and this court has preliminarily addressed, some of the underlying issues, in connection with the debtor's prior motion for an order approving a draft plan and disclosure statement. Therefore a longer briefing schedule does not appear to be necessary. See dkt. 244 (motion), dkt. 260 (opposition, especially at pp.17:11-21:13 and Winston Decl. Ex.1.B.), dkt. 263 (reply, especially at pp.9:9-12:24), transcript of 8/22/17 hearing (dkt. 272), debtor's status report (dkt. 273), and audio recording of 10/3/17 hearing.
Tentative briefing schedule:
2/13/18 deadline for Mr. Britton's opposition to estimation motion (dkt.
297)
2/20/18 deadline for reply by the debtor 2/27/18 at 2:00 p.m., hearing
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: TBD
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Continued status conference: to be held concurrent with the
hearing on the claim estimation motion; no written Status Report required (but if any status report is filed by any party, it should be filed at the same time as the debtor's reply so that this court will have adequate time to review it before the hearing).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/23/18:
Continue to 1/30/18 at 2:00 p.m. to be concurrent with the preliminary hearing (for scheduling purposes) on the debtor's motion (dkt. 297) to estimate Mr.
Britton's claims. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's status report (dkt. 273), and any other matters appropriate for a status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for
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disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's motion for approval of the proposed disclosure statement (dkt. 244), the Britton opposition (dkt. 260), the debtor's reply (dkt. 263), the debtor's status report (dkt. 262), and any other matters appropriate for a status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Continue as set forth below. Appearances are not required on 7/11/17.
Current issues
No sua sponte issues at this time.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement (dkt. 246, 245): D/S hearing scheduled for 8/22/17 at 2:00 p.m. (see dkt. 253).
Continued status conference: 8/22/17 at 2:00 p.m.; brief Status Report due 8/15/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/23/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The parties should be prepared to update this court on the status of the
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issues noted in the debtor's Eighth Status Report (dkt. 231), as well as whether this court should set any deadlines or procedures.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: The court will discuss setting deadlines related to the Plan/Disclosure Statement at the status conference.
Continued status conference: 6/20/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/25/17:
Continue all matters to 5/23/17 at 1:00 p.m. pursuant to the debtor's request in the Seventh Status Conference Report (dkt. 224, p.3). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/28/17:
Continue all matters to 4/25/17 at 1:00 p.m. pursuant to the debtor's request in the Sixth Status Conference Report (dkt. 212, p.3). Appearances are not required on 2/28/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 12/13/16:
Continue all matters to 2/28/17 at 2:00 p.m. pursuant to the parties' request in the status conference statement (dkt. 181, p.3). Appearances are not
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required on 12/13/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 12/13/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The parties should be prepared to update this court on the status of this case including their negotiations, why this court should not order mandatory mediation, which parties in interest should be included in such mediation, and any other appropriate procedures regarding payment of professionals, filing documents under seal, etc.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: no deadline
Continued status conference: 2/28/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Fee applications. The tentative ruling is (1) after the reductions that Browne concedes, to overrule the Britton objection to Browne's fees; (2) to
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sustain in part the limited objection of Ms. West by allowing 100%, but temporarily deferring any payment (either from any retainer or from other sources), on account of the fee applications, with a deadline of 12/12/16 for Ms. West to file (a) an adversary proceeding to determine the relative priorities of her rights and interests in the royalties, and/or other funds in which the debtor's estate asserts an interest, as against the debtor, its creditors, and other parties in interest, and (b) a request (motion) for adequate protection of her alleged claims or interests (pursuant to 11 U.S.C. 361 and 363(c), (e), (p), and Rule 7001(2), (7) & (9), Fed. R. Bankr. P.). In addition, this court anticipates providing a tentative ruling on the merits of Ms. West's asserted rights and interests, and addressing what documents (already filed or filed in future) do or do not have to be under seal, and establishing a mutually workable procedure for any sealed documents.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: no deadline
Continued status conference: 4/4/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/6/16:
Continue to 12/13/16 at 1:00 p.m. based on the debtor's current status report (dkt. 112). Appearances are not required on 9/6/16.
The debtor is directed to file a brief status report two weeks before the continued status conference.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/12/16:
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Continue to 9/6/16 at 11:00 a.m. to address the following issues. Appearances are not required on 4/12/16.
Based on the statements made in the debtor's status report (dkt. 92), this Court continues this status conference as set forth above. The debtor shall file a brief status report two weeks before the continued status conference.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/2/16:
Continue to 2/23/16 at 2:00 p.m. unless any opposition/response to employment or recusal are filed prior to 1/30/16. Appearances are not required on 2/2/16.
Reasons: At the hearing on 1/19/16, this court stated that the status conference would be continued without further hearing if no oppositions/responses to employment or recusal were received by the deadline for such things, which is 1/29/16. As of the preparation of this tentative ruling (on 1/29/16) no such documents have yet been filed.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 1/19/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Key documents reviewed: Motion for relief from automatic stay (dkt. 11), the debtor's opposition (dkt. 33), and the movant's reply (dkt. 46); and the debtor's application to employ Browne George Ross LLP as special counsel under 11
U.S.C. 327(e) and supporting papers (dkt. 26-30, 44, 45).
Current issues.
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Background. Claimant Britton's motion for relief from the automatic stay (dkt. 11) seeks to modify the automatic stay to liquidate the parties' claims in the underlying State Court action (Britton v. Riggs, LA Superior Ct. No. BC 496298). Just before trial was set to commence, the debtor filed this bankruptcy case, and trial has now been continued to 2/10/16. The debtor has filed an application (dkt. 26) to employ its existing attorneys in the State Court action as special counsel.
In view of the apparent urgency of these matters, this Bankruptcy Court issued an order raising a number of its initial concerns (dkt. 35), held a preliminiary hearing on 1/8/16, and directed the debtor to serve a supplemental notice addressing certain issues. In addition, when Judge Bason's law clerk learned of certain attenuated connections between him and the parties in this case, those matters were disclosed on the record (dkt. 39), and the debtor was directed to serve those disclosures on all parties in interest.
The debtor complied with these notice requirements (see dkt. 44, 43, 45) and the period for any response expires on 1/29/16 (fixed date in dkt. 39 as to this court's disclosures; and service on 1/11/16 + 14 days' notice + 3 days for service via U.S. mail = 1/29/16 as to the employment application). As of the time when this tentative ruling has been prepared (1/18/16) no response on either matter appears on the docket.
Relief from the automatic stay. The tentative ruling is to modify the automatic stay as follows, effective immediately upon (i) entry of an order of this court granting the employment application (so that the debtor can defend and prosecute its claims in the State Court action) and (ii) resolution of any request to be heard regarding recusal. Specifically, the automatic stay would be modified to permit litigation of the State court action insofar as liquidating claims by Mr. Britton agains the debtor and its principal, Mr. Riggs, as well as liquidating any counterclaims, including all subsidiary disputes such as whether the statute of limitations should be tolled and any alter ego issues, but not to permit enforcement of any judgment against any property in which the debtor asserts an interest absent further order of this Bankruptcy Court.
Judge Bason is not persuaded by the debtor's argument that the statute of limitations issue should be addressed by this Bankruptcy Court before any State Court litigation is permitted to continue. The principles underlying the Rooker Feldman doctrine (that this Bankruptcy Court may not
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act as essentially an appellate court for State Court determinations), as well as comity, a respect for the State Court's determination of these issues, conservation of judicial resources, the avoidance of forum shopping, and not permitting a party to obtain "two bites at the apple" all weigh against deciding the statute of limitations issues here. The State Court issued a detailed tentative ruling (dkt. 46-1, Ex.A, pp.23-26) regarding the statute of limitations issues, including its conclusion that those issues could not be determined as a matter of law because a reasonable trier of fact "may well determine that the delay in filing the action was due to the Defendants' fraud or other misconduct such that Defendants should be estopped from asserting the statute of limitations," and the State Court apparently adopted that tentative ruling when it denied the defendants' motion for summary judgment and declined to address the statute of limitations issues before trial. Judge Bason is not persuaded that this Bankruptcy Court can or should revisit that determination.
As to any claims that are truly alter ego claims (as distinguished from fraudulent transfer claims or other avoidance actions that belong to this bankruptcy estate), the tentative ruling is that under the Ahcom decision (623 F.3d 1248 (9th Cir. 2010)), any such claims do not belong to the bankruptcy estate and, therefore, the automatic stay would not prevent claimant Mr.
Britton from seeking to establish and pursue any alter ego claims against Mr. Riggs. Alternatively, the tentative ruling is to modify the automatic stay (if it applied) to permit such true alter ego claims to be litigated (when and if the State Court determines that they should be) because if those issues turn out to be relevant then they will have to be litigated anyway, and the State Court would be the proper forum in which to litigate them. To the extent that the debtor seeks to stay (enjoin) any such alter ego claims against Mr. Riggs in this bankruptcy case, such an injunction would have to be the subject of a separate adversary proceeding. See, e.g., In re Excel Innovations, Inc., 502 F.3d 1086 (9th Cir. 2007).
Employment of special litigation counsel. The tentative ruling is to conditionally approve employment of special litigation counsel for the reasons stated at the preliminary hearing on 1/8/16 and in the application (dkt. 26) and debtor's supplemental disclosures (dkt. 44). The condition is that no order approving such employment should be lodged until after the period for responses to such application or to this court's disclosures has expired (on 1/29/16), and of course if any such response is filed then this court will
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consider such responses (at a hearing as set forth below).
The potential for alter ego claims does not appear to create any cognizable conflict, at least at this stage of the litigation. Although it could be argued that there would be a conflict because any recovery that Mr. Britton could obtain from Mr. Riggs would decrease his claim against the debtor, and therefore theoretically benefit the debtor, it seems more likely at this stage that both Mr. Riggs and the debtor have a unified interest in contesting any asserted grounds for alter ego liability (i) so as to assure that Mr. Riggs devotes his energies to the debtor's future success and ability to pay its creditors, and (ii) so as to attempt to assure that there is a level playing field among the debtor's creditors (which, arguably, there would not be if one creditor - Mr. Britton - could pursue alter ego recoveries before other creditors could seek to do the same).
Of course, counsel for the debtor (both general and special counsel) and Mr. Riggs himself will need to monitor the situation continually. If a conflict or potential conflict does develop, they will need to file appropriate disclosures and/or seek a supplemental ruling from this court regarding the terms of any continued employment of special counsel.
Tentative hearing. If any response is filed to either the employment application or this court's disclosures, then a hearing will take place on 2/2/16 at 2:00 p.m. to address those things. If there is any such response, the debtor must notify chambers so that the matter may be added to this court's calendar for that day.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement*: file by 7/1/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
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Continued status conference: 2/2/16 at 2:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/19/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/5/16:
Appearances required by counsel for the debtor and by the principal of the debtor.
Current issues.
Affiliated businesses. The debtor's status report (dkt. 20, p.8:17- 9:3) requests that the debtor be excused from providing financial information concerning affiliates in both the status report and monthly operating reports. The tentative ruling is to grant that request.
Service of status report. This court's form status report must be served on, inter alia, all of the debtor's secured creditors and the top 20 largest general unsecured creditors. It appears that there are no secured creditors, but that unsecured creditors were not served (see dkt. 20, p. 10). The tentative ruling is to direct the debtor, no later than 1/6/16, to serve all parties in interest with a copy of the status report and this tentative ruling, and then parties in interest may, if they choose, raise any appropriate issues at future status conferences.
Plan and disclosure statement. The debtor has suggested (dkt. 20, p.4:20-23) a deadline of 4/30/16 to file initial drafts. The debtor should be prepared to address the associated procedures, including the local form plan and whether that deadline is consistent with the pending litigation with creditor Layne Leslie Britton (dkt. 11), currently set for trial in State court for 2/10/16.
Deadlines/dates. This case was filed on 12/1/15.
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Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement*: file by 4/30/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 1/19/16 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 48
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference (calendar no. 5, 1/30/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 17, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 12/5/17:
Appearances required. The tentative ruling is that although there are substantial grounds under the Curtis factors to grant relief from the automatic stay, nevertheless it would be in the best interest of creditors to delay granting such relief, on a temporary basis, to afford the debtor a breathing spell from litigating the state court action, and to obtain a better sense of the debtor's assets and prospects for generating income, all of which this court will discuss further with the parties at the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
2:00 PM
fr. 1/23/18
Docket 41
Tentative Ruling for 1/30/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following issues:
Current Issues:
Lake Elsinore Mortgage: In paragraph 13 on Schedule I (Exhibit A to the Motion), the Debtors state that Checkmate pays the mortgage on the Lake Elsinore rental property, but it was unclear whether Checkmate would continue to make those payments going forward in light of its own bankruptcy filing. Debtors indicate that this would result in a drop in income. Schedule J (Exhibit B to the motion) lists a net monthly income of $1,313.62. Are the debtors now paying the Lake Elsinore mortgage and, if so, will the debtors be filing a revised budget reflecting the impact that payment has on the debtor's net monthly income?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 17, 1/23/18 at 2:00 p.m.).
2:00 PM
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt Nicholas W Gebelt Nicholas W Gebelt
Akemi Sakurai Represented By Nicholas W Gebelt Nicholas W Gebelt
2:00 PM
Docket 1
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later
2:00 PM
time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders
2:00 PM
on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to
2:00 PM
conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
2:00 PM
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
2:00 PM
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
2:00 PM
FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 57
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference (calendar no. 7, 1/30/18 at 2:00 p.m.)
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 20, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 12/5/17:
Appearances required. The tentative ruling is that although there are substantial grounds under the Curtis factors to grant relief from the automatic stay, nevertheless it would be in the best interest of creditors to delay granting such relief, on a temporary basis, to afford the debtor a breathing spell from litigating the state court action, and to obtain a better sense of the debtor's assets and prospects for generating income, all of which this court will discuss further with the parties at the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
2:00 PM
Docket 1
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later
2:00 PM
time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
2:00 PM
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
2:00 PM
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 1
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 5, 1/30/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 8
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 5, 1/30/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
fr. 1/23/18
Docket 12
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 5, 1/30/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Movant(s):
Checkmate Kiing, Co., LTD Represented By Robert M Aronson
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse
2:00 PM
Robert M Aronson Nicholas W Gebelt
3:00 PM
Docket 11
Debtor(s):
Gabriel A. Holguin Represented By Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 15
Debtor(s):
Sang Chyun Represented By
Donald E Iwuchuku
Movant(s):
John R Lobherr Represented By Robert P Goe
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 8
(1) Deny for the reasons set forth in the opposition (dkt. 22) filed by Wells Fargo Bank, N.A. ("Wells Fargo") and the additional reasons set forth below, and (2) direct counsel to address at the hearing (a) why he should be allowed any fees for this motion, (b) whether he is competent to represent the debtor at all, and (c) whether he should be associating experienced bankruptcy counsel or arranging for a substitution of counsel and transfer of any fees received from the debtor. Appearances required by counsel for the debtor and by the debtor himself (counsel for the debtor must appear in person, but the debtor and any other parties in interest may appear by telephone if they follow Judge Bason's posted procedures for telephonic appearances, available at www.cacb.uscourts.gov).
Proposed order: Wells Fargo is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons for denial: The debtor seeks to avoid the junior liens of Wells Fargo and the City of Pomona, Housing Division's ("Pomona") on his principal residence pursuant to section 506(d). But on the record before this court (1) service is inadequate, (2) the evidence is inadequate, and (3) there is no basis to avoid either lien (in whole or in part) under section 506(d).
Service is inadequate
The proof of service (dkt. 8, last 2 pages) fails to comply with the rules for service. Service on Pomona does not comply with Rule 7004(b)(6).
This court also notes that service on Wells Fargo was defective, although Wells Fargo has waived any such defects by filing an opposition (in which it did not raise any deficiency in service). Among other things, Wells
8:30 AM
Fargo was not served to the attention of an officer as required by Rule 7004 (b)(3) & (h) (Fed. R. Bankr. P.) (incorporated by Rule 9014(b), Fed. R. Bankr. P.).
Evidence is inadequate
The form motion includes a section for describing the supporting evidence by exhibit numbers. See dkt. 8, p.4, section 3.c. That section is mostly blank.
Section 506(d) does not support avoidance of either lien
The motion papers include an appraisal valuing the property at
$265,000. The debtor states that the total value of all liens against the property is $207,417.65. Motion, p.3, lines 3-7 (1st DOT $89,545.97 + Wells Fargo's 2nd DOT $65,157.55 + Pomona's 3rd DOT $48,714.13 =
$207,417.65). Therefore, according to the debtor's own evidence both liens are fully secured and cannot be avoided under section 506(d).
It appears that counsel for the debtor has mistakenly conflated two sections of the Bankruptcy Code:
section 506(d) (which only permits avoidance of liens to the extent they are "under water" (and sometimes not even then - see 11 U.S.C. 1322(b) (2)), and
11 U.S.C. 522(f), which permits avoidance of judicial liens to the extent that they impair a valid homestead exemption: there is no showing that the liens of Wells Fargo or Pomona are "judicial" liens, and in any event the motion neither seeks nor establishes a sufficient basis for avoidance under section 522(f).
The debtor's reply (dkt. 24) cites irrelevant cases. One case was decided under section 522(f) (and much of its discussion involves matters that have since been mooted by the 2005 revisions to the Bankruptcy Code). See In re Smith, 92 B.R. 287 (Bankr. S.D. Ohio 1988). The debtor cites one other case, for the proposition that "a Motion to Strip [a junior] mortgage may be filed, despite [the fact] that Debtor already obtained a Chapter 7 Discharge." Dkt. 24, p.1:24-25 (citing In re Blendheim, 803 F.3d 477 (9th Cir. 2015)). That issue is irrelevant to whether the lien is partially or wholly unsecured; and on the debtor's own facts the subject liens are wholly secured.
8:30 AM
Counsel's fees and competence
Bankruptcy is a complex specialty. It appears that the debtor's counsel is not sufficiently familiar with the Bankruptcy Code and Rules to represent the debtor, either in this specific matter or more generally in this bankruptcy case. Awarding fees for the counterproductive work on this matter would only harm the debtor and creditors, and going forward this Bankruptcy Court is concerned about the potential for irreparable harm to the debtor and creditors. Counsel should be prepared to address (a) whether new counsel should be substituted in and (b) whether any fees that the debtor or the Chapter 13 Trustee may have paid to such counsel should be transferred to new counsel.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Ronald Martinez Represented By Moises A Aviles
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 14
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Uche Pearl Rodriguez Represented By Anthony P Cara
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 25
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Paige Lynne Cross Represented By Kahlil J McAlpin
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 52
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the motion (dkt. 52) and opposition (dkt. 55).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Boaz Tribelsky Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 53
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 55).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Glory Edukere Represented By David R Chase
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 63
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 65).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jay C Shin Represented By
Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 61
Deny as moot because the issues raised both by the motion and by the opposition (dkt. 64) concerning finalization of the loan modification appear to have been mooted in view of this court's order (dkt. 77) granting the debtor's motion (dkt. 66) for authorization to enter into loan modification.
Appearances are not required.
Deny. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jay C Shin Represented By
Thomas B Ure
Movant(s):
Jay C Shin Represented By
Thomas B Ure
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 142
Approve the Chapter 13 Trustee's final report (dkt. 142) subject to clarification in that report and in the order approving it, all as set forth below.
Appearances are not required.
Proposed order: The Chapter 13 Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Background
The Chapter 13 Trustee's final report (dkt. 142) includes the notation "(j) PAID IN FULL" and then lists claims and disbursements including claim no.1 of creditor Long Beach City Employees Federal Credit Union (the "Credit Union") stated to be in the "Scheduled Amount" of $22,295.50 and the "Proof of Claim Amount" and "Allowed Amount" of $15,481.11 with "100%" to be paid. Credit Union has objected (dkt. 143, 146) that in fact its claim has not been paid in full, and it is concerned that the debtors might use the final report to argue the contrary in nonbankruptcy courts.
The parties' arguments, and this Court's analysis
The Trustee points out that the language in her final report is standard practice, and that practice is supported by the Local Bankruptcy Rules ("LBR"). Those rules provide that when an order grants relief from the automatic stay to permit a creditor holding a secured claim to exercise its remedies against its collateral then (unless the order provides otherwise) the secured claim is deemed withdrawn:
(4) Payments after Relief from Automatic Stay. If an order is entered granting relief from the automatic stay, unless otherwise specified in the order, the chapter 13 trustee is relieved from making any further payments to the secured creditor that obtained
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such relief. The secured portion of that creditor’s claim is deemed withdrawn upon entry of the order for relief, without prejudice to filing an amended unsecured claim for a deficiency when appropriate. The secured creditor that obtains relief from the
automatic stay must return to the chapter 13 trustee any payments the creditor receives from the chapter 13 trustee after entry of the order unless the stipulation or order provides otherwise. [LBR 3015-1(r)(4) (emphasis added)]
In other words, as the Trustee points out (and the Credit Union agrees, dkt. 146, p.2:1-2), the payments that have already been made on the secured claim (before relief from the automatic stay was granted) constitute the full dollar amount that the Trustee is required to pay on account of the secured claim. That is what the final report means when it states that the claim was "paid in full."
The Trustee does not argue that the Credit Union's claim was actually disallowed above what was paid. But as the Credit Union argues (dkt. 143, 146) the final report's statement that the claim was "paid in full" could be misread to mean that.
The Credit Union is "concerned that with the Debtors' past actions, the Debtors may try to claim the Credit Union's allowed claim was only for the sum of $15,481.11, which is what the Trustee's Report says on its face." Dkt. 146, p.2:6-8. That concern is reasonable. This Court takes judicial notice that in this particular bankruptcy case the debtors (or their counsel) have made extensive unmeritorious arguments. See, e.g., dkt. 55, 108 (orders overruling claim objections and disallowing certain fees sought by debtors' counsel).
Any argument by the debtors that the Credit Union's claim was reduced to the dollar amount listed in the Trustee's final report would be frivolous. First, this court has overruled the debtors' claim objections. See, e.g., dkt. 55, 108.
Second, the LBR cannot have the effect of automatically disallowing the Credit Union's claim because claims can only be disallowed for the reasons set forth in 11 U.S.C. 502(b). See, e.g., In re Campbell, 336 B.R. 430 (9th Cir. BAP 2005) (rules cannot add to statutory grounds to disallow claims); In re Heath, 331 B.R. 424 (9th Cir. BAP 2005) (same). See also Travelers Cas. & Sur. Co. of Am. V. Pac. Gas & Elec. Co., 549 U.S. 443, 449 (2007) ("the court 'shall allow' the claim 'except to the extent that' the claim
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implicates any of the nine exceptions enumerated in § 502(b)").
Third, the only sensible reading of LBR 3015-1(r)(4) is that the secured claim is only "deemed" withdrawn for purposes of distributions by the Trustee, not for purposes of allowing or disallowing the claim itself. In other words, LBR 3015-1(r)(4) and the Trustee's final report have no effect on any in personam or in rem claim that a creditor such as the Credit Union has outside of the Bankruptcy Court (of course, any debtor who receives a discharge of a particular debt no longer has in personam liability on that debt, but that is a separate issue that has nothing to do with LBR 3015-1(r)(4) or the Trustee's final report).
In sum, the Credit Union is correct on both issues: (a) the Trustee's final report could be misread by the debtors or their counsel (either intentionally or, perhaps, unintentionally) and (b) there is no support for such a reading. Therefore it is appropriate to clarify that the Trustee's final report does not reduce the Credit Union's claim.
Specific language to be used for clarification
The Credit Union requests that the following language be inserted both in the final report and in any order approving the final report:
It is acknowledged that the allowed claim of Long Beach City Employees Federal Credit Union only reflects the amount the Credit Union had been paid, as of the time it was granted relief from the automatic stay. Said sum is inserted in place of the Credit Union's actual allowed claim. [Dkt. 146, p.2:18-21]
This Bankruptcy Court is persuaded that in the unique circumstances of this contentious bankruptcy case it is appropriate to insert such language, or similar language, if the parties can agree on the appropriate phrasing. If the parties cannot agree then they are directed to telephone Judge Bason's chambers and arrange for a telephonic hearing to resolve the issue at a mutually convenient time.
Note: The Chapter 13 Trustee is invited to consider whether a change in phrasing in the final reports and/or in LBR 3015-1(r)(4) would be appropriate, to preclude the type of problem that the Credit Union is (reasonably) concerned about in this case. Judge Bason anticipates addressing that with the Chapter 13 Trustee in other appropriate fora, such as in connection with proceedings before the Rules Committee.
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Mary Helen Winters Represented By Stuart R Simone
Joint Debtor(s):
Eugene Winters Represented By Stuart R Simone
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 74
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Florentino Tantoy Leanillo Represented By Heather J Canning Barry E Borowitz
Joint Debtor(s):
Rosalinda Hernandez Leanillo Represented By Heather J Canning Barry E Borowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 35
Appearances required. There is no tentative ruling, but counsel should be prepared to address the issues raised in this court's order (dkt. 43) on counsel's supplemental fee application.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charlene Adams Represented By
Michelle A Marchisotto Cynthia L Gibson
Craig K Streed
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 12/7/17
Docket 78
Tentative Ruling for 2/8/18 (same as for 12/7/17):
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 84).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marco Antonio Acosta Represented By Kevin T Simon
Joint Debtor(s):
Stacy Lynn Acosta Represented By Kevin T Simon
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 1/11/18
Docket 72
Tentative Ruling for 2/8/18 (same as for 1/11/18):
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 73).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Walker Kerr Represented By Thomas B Ure
Movant(s):
Michael Walker Kerr Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 1/11/18
Docket 85
Tentative Ruling for 2/8/18:
Continue to 3/8/18 at 8:30 AM for corrected service on the junior lienholders, and clarification of certain ambiguities, all as set forth below. Appearances are required by debtor's counsel on 2/8/18.
Key documents reviewed (in addition to motion papers): IRS's Opposition (dkt. 103).
Background
The debtor's original motion (dkt. 85) did not ask for authority to sell free and clear of liens under 11 U.S.C. 363(f), although it appeared to seek such relief. The Chapter 13 Trustee responded, among other things, "it is not clear if all lienholders have agreed to such a sale." Dkt. 89. (The senior lienholder, Wells Fargo, also filed a conditional non-opposition, dkt. 96.)
The debtor has now filed an amended motion (dkt. 102) which seeks authority to sell free and clear of liens under 11 U.S.C. 363(f). The debtor does not have any specific sale arranged, although the debtor hopes to sell the property for something in the range of $1 million, which apparently is above the dollar amount owed to senior lienholder Wells Fargo but well below the dollar amount sufficient to pay the junior liens on the property.
The motion appears to be seeking authorization for sale procedures. In addition, the motion appears to be seeking either (a) pre-authorization to sell for whatever price the debtor might obtain (which this court tentatively is not prepared to grant) or, alternatively, (b) a subsequent motion and/or hearing to approve whatever proposed sale the debtor actually negotiates (which is a procedure that this court is inclined to approve, subject to the issues noted below).
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Service
Service on the junior lienholders does not appear to comply with the applicable rules. For example, Rules 2002(g) and 7004(b)(3) (Fed. R. Bankr. P.) generally require service at the most recent address designated by the creditor (typically in a proof of claim) or, if no such address has been designated, then organizations typically must be served "Attn: Officer or Managing/General Agent" or the like, at an address reasonably calculated to reach that person (e.g., corporate headquarters, rather than a P.O. Box used for payments). Service on attorneys who have represented a creditor outside of the bankruptcy case is inadequate. See In re Villar, 317 B.R. 88 (9th Cir. BAP 2004). FDIC-insured institutions must be served via certified mail, per Rule 7004(h).
Similarly, service on the Internal Revenue Service ("IRS") usually must comply with Rule 7004(b)(5) (the Court Manual includes instructions and addresses for such service). The rules are not entirely clear, but that may be superseded by the address designated by the IRS in its proof of claim, although that does not help because the debtor has not used that address.
See Claim 2-1, p.1, under "Where should notices to the creditor be sent?"
The debtor must re-serve the motion in compliance with the applicable rules for service. That motion must be accompanied by a notice of the continued hearing date (with the standard deadline for any opposition) and a notice clarifying the ambiguities noted below.
Ambiguities
Proposed use of proceeds
The debtor calculates, based on a hypothetical sale price of $1 million, that after paying Wells Fargo's senior debt, real estate taxes, and costs of sale, there will be a remaining balance of roughly $135,000 "for the benefit of creditors." Dkt. 102, p.6:27-28. It is not clear what the debtor means by this.
Typically a sale "free and clear" of liens and other interests under section 363(f) provides for net proceeds to be held in a segregated account and with all remaining liens to attach to those proceeds pending further order of the court, with the same priority, validity, and dollar amounts as those liens had attached to the original collateral. The typical benefit to the debtor and the bankruptcy estate of using this procedure, instead of simply paying the liens out of escrow, is that (i) the sale will not be delayed by any dispute as to the priority, validity, or dollar amount of any lien, or by litigation to avoid one or
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more liens under 11 U.S.C. 522(f), 547, or on other grounds, and (ii) if the debtor can provide adequate protection of the junior liens then the debtor might be able to use the funds in a way that ultimately will result in a net benefit to all parties - such as repairing a roof on rental property that will assure more rental income, or investing in a business that will generate more revenues.
It appears that the debtor might intend to pay liens, in their order of priority, "directly from escrow" (dkt. 102, p.9:17), or at least provide the Chapter 13 Trustee with discretion to do so (id., p.9:1-6), so perhaps there will be no need to hold net proceeds in a segregated account. In any event, the debtor should clarify what is intended by proposing to use the projected
$135,000 "for the benefit of creditors." (If the debtor intends something different from the options outlined above then the debtor must say so; but what the debtor cannot do is to simply use the $135,000 for personal reasons, or distribute it to unsecured creditors, because then the debtor would be ignoring the secured claim(s) held by junior lienholder(s).)
Approval of actual sale
As noted in the "Background" section of this tentative ruling, it is not clear if the debtor intends for this court to pre-authorize whatever sale the debtor might negotiate, but this court is not inclined to grant such a pre- authorization. On the other hand, this court is inclined to approve a two step process: first authorizing the sale procedures set forth in the motion (dkt.
102), as clarified above, and second authorizing the debtor to provide notice to creditors of the actual sale price and other terms (once a sale is negotiated) pursuant to the usual procedures for sales of property in chapter 13 cases in this district. If the debtor seeks any special procedures, such as shortened time, then the debtor should make that clear in the motion papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Tentative Ruling for 1/11/18:
Appearances required. This matter was set for hearing based on the Chapter 13 Trustee's objection (dkt. 89) that, among other things, "it is not clear if all lienholders have agreed to such a sale." One lienholder (apparently the senior lienholder who will be paid in full) has filed a conditional non-opposition (dkt. 96), but what about the other lienholders? The motion does not request any sale free and clear of liens under 11 U.S.C. 363(f), nor does the motion address the elements of that statute. Does the debtor intend to amend the motion to seek such relief?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Donnicus L Cook Represented By Vernon R Yancy
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 22
Tentative Ruling for 2/8/18:
Appearances required. At the hearing on 1/11/18 this court orally granted the motion, directed counsel for the debtor to lodge a proposed order vacating the dismissal of this case, and set this continued hearing both to assure that the order was duly lodged and as a status conference to address whether this case is being adequately prosecuted. Counsel for the debtor has filed a notice of lodgment (dkt. 27), but did not actually lodge any proposed order. In addition, the docket does not reflect any other progress in this case. What remedy should this court impose?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether sufficient cause exists to vacate the dismissal order (dkt.20).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Melvin Blackwell Represented By Ronda R Dixon
Movant(s):
Melvin Blackwell Represented By Ronda R Dixon
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/17/17, 10/5/17, 12/7/17, 1/11/18
Docket 106
Tentative Ruling for 2/8/18 (same as for 1/11/18 and 12/7/17): Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). The parties should be prepared to address the status of their negotiations and whether they have been able to resolve their disputes.
Furthermore, at the 8/17/17 hearing on this motion, the creditor was directed to file a declaration no later than 9/21/17 addressing (a) its purported non- payment of this court's prior award of fees and expenses (see order, dkt. 77); its re-calculation and/or verification of the purported shortfall after reviewing the debtor's Objection (dkt. 106) to its response (dkt. 94) to the Chapter 13 Trustee's notice of final cure payment [to the extent not addressed by the creditor's supplemental response at dkt. 115]; and (c) the reasons for its late filing of (i) its response to the notice of final cure and (ii) its response (dkt.
115) to the debtor's Objection. A scheduling order continuing the hearing to 10/5/17 was entered on 8/23/17, memorializing the above (dkt. 116).
Creditor has not filed any such declaration on the docket (as of the date when this tentative ruling has been prepared, over a week after the deadline). Why not?
Should this court issue an order to show cause ("OSC") why sanctions should not be imposed? Should this court entertain a motion by counsel for the debtor for sanctions? At the very least, the late responses and lack of responses appear to be costing the debtor/estate the time and expense for the debtor's attorney to appear in court to address these things.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/17/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's opposition (dkt. 106) to the response to final notice of cure payment filed by HSBC Bank USA, N.A. filed on 6/2/17.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sean David Jones Represented By Thomas B Ure
Movant(s):
Sean David Jones Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 02/02/17, 03/02/17, 03/30/17, 06/22/17,08/17/17, 10/5/17, 11/2/17, 12/7/17
Docket 195
Tentative Ruling for 2/8/18:
Continue hearing to 3/8/18 at 8:30 AM. Appearances are not required on 2/8/18.
At the hearing on 12/7/17, this court continued the matter to 2/8/18 to serve as a status conference to address whether, in view of any discovery propounded by the debtor, and any responses thereto, the debtor had established any realistic hope of being able to prosecute the motion successfully. If so, this court would address what further procedures to implement, such as setting an evidentiary hearing.
But in the two months that have elapsed since the prior hearing, the debtor states that he has not propounded any discovery (dkt. 254).
Accordingly, the matter is deemed submitted on the present record and no further briefing is permitted.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 12/7/17:
Depending upon the outcome of Nationstar's motion for reconsideration (calendar no. 27, 12/7/17 at 8:30 a.m.), this court will discuss how the parties would like to proceed with this matter and set a continued status conference.
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Tentative Ruling for 10/5/17:
Deny. Appearances are not required.
Proposed order: Nationstar is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Background
As this court understands the debtor's assertions, his motion involves the senior lien (Claim No. 8) on his principal residence at 28832 Benjie Way, Lancaster, CA (the "Property"). Originally the holder of that lien was BAC Home Loans ("BAC"), but subsequently the claim was transferred to Nationstar Mortgage, LLC (dkt. 89) ("Nationstar").
The debtor asserts that Nationstar violated the discharge injunction by initiating foreclosure proceedings and refusing (for a number of months) to release its lien. The debtor admits that he must show a "willful" violation of the discharge injunction. The debtor's assertions are puzzling for several reasons.
Normally, the rights of a senior lienholder on a debtor's principal residence cannot be modified. See 11 U.S.C. 1322(b)(2). The only statutory exception is that arrears can be cured during the term of the plan; but the long term debt and lien survive. See 11 U.S.C. 1322(b)(5). Therefore, if the debtor fails to pay the full, unaltered amount of the debt, the senior lienholder can foreclose without violating the discharge injunction.
Of course, junior liens on principal residences can be avoided if they are entirely underwater (because then they are not "allowed secured claims," so they are not entitled to the protection of the above-cited statutes). See In re Zimmer, 313 F.3d 1220 (9th Cir. 2002) and In re Lam, 211 B.R. 36 (9th Cir. BAP 1997). But even then, the junior lienholder receives a lot of very clear notice, which means that the debtor has a good record to establish a "willful" violation of the discharge injunction if the junior lienholder attempts to foreclose after its lien has been avoided.
Specifically, the junior lienholder must be served with a required form of motion to determine that the lien is entirely underwater (Local Form F 4003-2.4, at dkt.14 in this case), that motion expressly states when the lien is
to be avoided (see id.) (normally either upon completion of the plan, or receipt
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of a chapter 13 discharge), and if the lien actually is to be avoided then the court issues an initial order granting the motion (Local Form F 4003- 2.4.ORDER, at dkt. 32 in this case) and a second order, after the preconditions for avoiding the lien have been satisfied, avoiding the lien (Local Form F 4003-2.4.ORDER.AFTERDISCH).
Again, however, this matter involves a senior lien. In this case it appears that the debtor is relying on a very unusual provision regarding that lien which was added to the confirmation order. But, as discussed below, there is no showing that Nationstar was made aware of that provision at any time before it released its lien; and that provision is ambiguous on its face, so by itself it does not appear to establish any "willful" violation of the discharge injunction.
Highly unusual modification of the senior lien at the confirmation hearing On 6/14/12 this court held a hearing on whether to confirm the debtor's
chapter 13 plan or dismiss the case. After several breaks in the hearing for the parties' negotiations, an agreement was reached and subsequently included in a special provision of the confirmation order. That order provides:
For purpose of plan confirmation, the value of the real property commonly known as 28832 Benjie Way, Lancaster, CA 93536 is determined to be $194,000. The amount of the secured claim which shall be paid, in full, during the life of the chapter 13 plan is
$169,340, with interest at the rate of 6.75% for the remaining 48 months of the Chapter 13 Plan. [Dkt. 73, p.3, para. 1.b.]
This court is not aware of any evidence in the record that the debtor ever pointed out this language to Nationstar. As noted above, normally senior liens pass through bankruptcy unaffected, so the burden is on the debtor to show that Nationstar was even aware of this special provision in the confirmation order.
Moreover, even if Nationstar knew of this special provision, the language on its face is somewhat ambiguous about whether the in personam and in rem liability are actually reduced to $169,340, or if that is just what must be fully paid during the remaining 48 months of the plan without reducing the long-term obligation to pay any remaining balance. Although the former interpretation seems more likely (based solely on the above quote), the typical treatment of senior liens is to provide for some payments (arrears) during the plan without reducing the long term obligation, so, again, the
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language is somewhat ambiguous. Moreover, the ultimate question is whether this provision is clear enough that (if Nationstar was even aware of this language) Nationstar "willfully" violated this provision and thereby willfully violated the discharge injunction.
On 11/20/12 Claim No. 8 was transferred from BAC to Nationstar (dkt. 89). The transfer document lists the claim in the full amount of $379,125.14. Moreover, the order says nothing about when the lien will be avoided.
The debtor seems to think it is when he receives his discharge, which is one of the typical choices (the other being upon completion of the plan), but again, the order itself is silent, so the question is whether Nationstar's failure to recognize when its lien was avoided amounts to a willful violation of the discharge injunction.
From the foregoing it appears that nothing in the record provided clear notice to Nationstar that (a) whatever unpaid balance remained (out of the full
$379,125.14 debt) would be forgiven at the end of the plan, or (b) whether and when its lien would be avoided. Normally none of those things would happen to a senior lienholder, and if they did they would be the subject of a motion and two orders, rather than a special, somewhat ambiguous provision inserted into a confirmation order.
Apparent lack of other clear notice to Nationstar
The debtor points to the reports provided by the Chapter 13 Trustee. It is true that the trustee's notice of intent to file final report (dkt. 172) was served on Nationstar on 5/12/15, and the final report (dkt. 176) was filed on 6/17/15 and approved on 6/18/15 (dkt. 179), but nothing in those documents states whether the $169,340 was in full payment of the claim or if the balance remained due, as would be typical for a senior lien on a principal residence.
The debtor received a discharge on 6/22/15 (dkt. 181). But the debtor has not shown how Nationstar had any clear notice that this meant its lien was avoided (again, typically the senior lien on a principal residence would be unaffected by the discharge).
On 7/27/15 the debtor (acting without an attorney) apparently sent a letter to Nationstar (dkt. 207, Ex.C). But that letter is somewhat difficult to follow (unsurprisingly for a non-lawyer's letter) and it does not explain any of the above. In addition, Nationstar asserts that the letter was incorrectly addressed (dkt. 208, p.8:11-23) and the debtor's (belated) reply (dkt. 237) does not dispute that issue.
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The debtor points to a letter from Nationstar's attorneys on 12/15/15
stating that the loan has been referred to them for foreclosure. Dkt. 184, Ex.A (last page). Former counsel for the debtor attests that he called that firm on 3/31/16 (dkt. 184, p.5, para.4), but he does not say that he explained any of the above (nor does it seem likely that he did, at least in any way that Nationstar clearly understood, because the subsequent motion papers do not clearly explain the special provision to this court).
On 12/8/16 the debtor filed the present motion (dkt. 195) seeking sanctions for violation of the discharge injunction. That motion refers to the motion to avoid the junior lien, but does not explain how the senior lien was (purportedly) altered: there is no citation to, let alone quotation of, the (somewhat ambiguous) special provision the confirmation order.
On 3/16/17 Nationstar, having apparently figured out the facts, send a release of its lien to the county recorder. Dkt. 208, Ex.A. On 3/23/17 Nationstar filed its opposition (dkt. 208) which cites to and quotes the special provision in the confirmation order (id., p.2, para.8) - the first time this court was apprised of the precise basis for the debtor's arguments. The opposition point out the lack of evidence that Nationstar had actual notice of the special provision in the confirmation order, or any other facts that would have made its alleged acts "willful":
Debtor’s claim that Nationstar is in contempt and violated the discharge injunction is premised on numerous unsubstantiated allegations that Debtor reached out to Nationstar and advised it that the lien was to be released due to the cramdown [i.e., the special provision in the confirmation order], despite having never filed a Motion to Value Collateral. Debtor has also failed to meet his burden in showing that Nationstar knew of the discharge injunction was applicable and acted with intent to violate the injunction. [Dkt. 208, p.4:6-10, emphasis added.]
The opposition also cites authority expanding upon the willfulness requirement, and holding that a willful violation of the discharge injunction must be shown by "clear and convincing" evidence.
On 9/28/17 the debtor (now represented by different counsel) filed a belated reply (dkt. 237). That reply does not address any of the foregoing issues.
The reply does explain many ways in which the debtor allegedly suffered emotional and financial damages. It specifies that the debtor seeks
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an award of $893,964.85 in alleged actual damages plus $15 million in punitive damages.
Conclusion
Whatever harm the debtor suffered from Nationstar not releasing its lien sooner is tragic. But the debtor has the burden to show, by clear and convincing evidence, that Nationstar knew the discharge injunction applied to its acts, and that it nevertheless proceeded in willful violation of the discharge injunction. Based on the evidence summarized above, this court does not understand the debtor's factual or legal theory to be able to meet that burden. Therefore, it does not appear appropriate to issue an order directing Nationstar to show cause why it should not be sanctioned.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 8/17/17:
Appearances required. On 6/19/17, this court entered its order assigning this dispute to mediation (dkt. 215). There is no tentative ruling, but the parties should be prepared to address the status of their negotiations.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/30/17:
Appearances required.
On 4/27/16, nearly one year ago, this court entered its order granting the debtor's motion to reopen his case to file the subject motion (dkt.186). The debtor filed the motion on 12/8/16 (dkt. 195), and due to the debtor's failure to correct multiple defects therewith (see this court's adopted 2/2/17 tentative ruling on the motion, reproduced below), this court's tentative ruling for the 3/2/17 hearing on this motion was to deny it.
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At the 3/2/17 hearing on the motion, however, this court was persuaded to grant the debtor's request for another continuance to cure the deficiencies in the motion, which it appears the debtor has now done (see dkt. 204, 207).
This court has also reviewed the opposition to the motion filed by Nationstar Mortgage LLC (dkt. 208).
There is no tentative ruling, but the parties should be prepared to address the status of their disputes, and why this court should not order the parties to participate in mandatory mediation.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/2/17:
Deny. Appearances are not required.
Proposed order: This court will prepare the order.
Reasons for denial: At the 2/2/17 hearing on the motion, this court adopted its tentative ruling and continued the hearing to allow the movant to correct certain deficiencies in service and a lack of evidence in support (2/2/17 tentative ruling reproduced below). This court has reviewed the case docket, and no supplemental proof of service or evidence in support of the motion has been filed.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/2/17:
Continue to 3/2/17 at 8:30 a.m. to address the following issues. Appearances are not required on 2/2/17.
Reasons:
Service. There has not been any response to the motion, but that may be due to apparent deficiencies in service. Specifically, the motion papers were
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not served:
to the address for notices in the creditor's transfer of claim (dkt. 89) which was filed prior to the time that the motion papers were served (and which appears to be the most recent designated address) (FRBP 2002(g));
to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment of law (FRBP 7004(b)(3)), at an address that appears to be reasonably calculated to reach the officer (e.g., corporate headquarters) (note: Judge Bason does not require that a specific individual be named -- "Attn: Officer or Managing/General Agent" is sufficient) (further note: arguably the address designated on the proof of claim supersedes any requirement to address an officer or managing/general agent; but the issue is not free from doubt so the debtor is directed to serve the creditor using both forms of address: with and without the quoted phrase above); and
to Buckley Madole, purported counsel for Nationstar Mortgage LLC ("Nationstar") from whom the debtor has allegedly received multiple communications regarding Nationstar's alleged foreclosure efforts (note: again, arguably this additional notice is not required, but in the circumstances the tentative ruling is to require that the debtor use all three separate forms of notice).
Evidence. The debtor's motion is unsupported by any evidence, despite the reference in the motion to an accompanying declaration of the debtor (dkt. 195, p.4:7). This court is not inclined to grant the motion absent some supporting evidence of the purported actions of Nationstar and the damages allegedly suffered by the debtor. In addition, the motion does not specify the actual dollar amounts of various types of damages that the debtor requests, and to provide proper notice the motion should specify such damages.
Caveat. If the foregoing deficiencies are cured, the motion appears to provide appropriate legal authority for damages of various types, and Nationstar is cautioned that disregarding the motion may result in an award of damages.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
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Debtor(s):
Jeffrey Mark Freeman Represented By Shai S Oved
James D. Hornbuckle
Movant(s):
Jeffrey Mark Freeman Represented By Shai S Oved Shai S Oved Shai S Oved
James D. Hornbuckle James D. Hornbuckle James D. Hornbuckle
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 12/7/17
Docket 242
Ruling for 2/8/18:
Grant the motion for the following reasons. This court will not entertain appearances on this matter.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The following supplements this court's oral findings of fact and conclusions of law at the hearing on 12/7/17.
Reconsideration is proper
As this court explained at the hearing on 12/7/17, the usual procedure of this Bankruptcy Court is to grant motions for Rule 2004 examinations without a hearing (LBR 2004-1(d)) but subject to the limitations in Rule 9016 (Fed. R. Bankr. P.) (incorporated by Rule 2004(c)). That is parallel to the usual procedure in many jurisdictions (both State and Federal) permitting attorneys to issue subpoenas without a prior court order, but subject to various limitations and remedies.
One such remedy would be to seek to quash or modify the subpoena.
Another appropriate remedy is to seek reconsideration of the Rule 2004 order.
Rule 2004 is not the correct discovery tool
Nationstar argues persuasively (dkt. 242, p.7:24-10:2) that there is a pending contested matter so Rule 2004 is not the proper vehicle for discovery. The debtor could only use the more limited discovery tools available in Rules 7026 and 7028-37 (incorporated by Rule 9014(c), Fed. R.
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Bankr. P.).
Revised Tentative Ruling for 12/7/17:
Appearances required. The tentative ruling is to vacate the order granting the debtor's motion for a Rule 2004 examination and request for documents, for the reasons stated in Nationstar's motion and reply papers (dkt. 242, 252) and additional reasons to be discussed at the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/7/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the scope of the 2004 examination and request for production of documents.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jeffrey Mark Freeman Represented By Shai S Oved
James D. Hornbuckle
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
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Cont'd hrg re: Objection to Claim Number 7 by Claimant Capital One Bank (USA), N.A.
by American Infosource LP as agent fr. 1/11/18
Docket 154
Tentative Ruling for 2/8/18:
Grant the motion (sustain the claim objection). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Continue to 2/8/18 at 8:30 a.m., subject to the same conditions and requirements set forth for calendar no. 13 (1/11/18 at 8:30 a.m.), or deny if the debtor cannot meet those conditions. Appearances are not required on 1/11/18.
Key documents reviewed: amended claim (no. 7-2), debtor's reply (dkt. 154).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jacqueline Beoglyan Represented By Thomas B Ure
Movant(s):
Jacqueline Beoglyan Represented By Thomas B Ure Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Cont'd hrg re: Objection to Claim Number 3 by Claimant American InfoSource LP as agent for Midland Funding LLC fr. 1/11/18
Docket 155
Tentative Ruling for 2/8/18:
Grant the motion (sustain the claim objection). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Continue to 2/8/18 at 8:30 a.m., subject to the same conditions and requirements set forth for calendar no. 13 (1/11/18 at 8:30 a.m.), or deny if the debtor cannot meet those conditions. Appearances are not required on 1/11/18.
Key documents reviewed: debtor's claim objection (dkt. 155); claim (no. 3-1).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jacqueline Beoglyan Represented By Thomas B Ure
Movant(s):
Jacqueline Beoglyan Represented By Thomas B Ure Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Cont'd hrg re: Objection to Claim Number 4 by Claimant American InfoSource LP as agent for Midland Funding LLC. fr. 1/11/18
Docket 156
Tentative Ruling for 2/8/18:
Grant the motion (sustain the claim objection). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Continue to 2/8/18 at 8:30 a.m., subject to the conditions set forth below, or deny if the debtor cannot meet those conditions. Appearances are not required on 1/11/18.
Option for continued hearing date
This court has selected a continued hearing date that is conditioned on the debtor (a) serving a copy of this tentative ruling on the claimant no later than 1/15/18, (b) serving an amended claim objection addressing the issues described below no later than the same date (which should be possible if, as the debtor implies, she already has the missing documents), and (c) filing a proof of service no later than 1/18/18.
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Alternatively, the debtor must lodge a proposed order denying this
claim objection (without prejudice) within seven days after this hearing, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Key documents reviewed: debtor's claim objection (dkt. 156); amended claim (no. 4-2); debtor's reply (dkt. 160).
Reasons for conditional continuance
As this court has explained before, the debtor has the burden of proof in asserting a defense of the statute of limitations. See dkt. 141 and memorandum decision referenced therein. The debtor now asserts that, although she apparently has no records related to this claimant, she and her husband stopped paying other creditors around December of 2008 and she believes that they stopped paying this claimant as well. She declares, "[w]e stopped making payments on all of our credit cards and stopped making payments at that time." Dkt. 156, p.6:12-13 (emphasis added).
The debtor's memory from several years ago is not normally sufficient to overcome the claimant's records (as this court has explained before, her remedy is to supplement her memory with her own written records or by seeking discovery, if appropriate). In this instance, however, a combination of things might be sufficient, if supplemented as decribed below, to shift the burden back to the claimant.
That combination of things is:
the original proof of claim includes a summary of its business records, not a monthly statement that covers the alleged date of the last payment, and although the summary is sufficient as against the debtor's memory, she allegedly has more evidence (as described below);
the amended proof of claim includes a monthly statement for the applicable month but the debtor's name has been redacted (that would not matter, because even without a monthly statement the debtor's memory is not enough to overcome the prima facie validity of the proof of claim, not to mention the claimant's written business records; but again the debtor alleges that she has more evidence); and
the debtor asserts that "I obtained a copy of my credit report" and that report "did not include any information related to an account with 'Chase Bank USA, NA' which Creditor asserts was the 'Previous Creditor.'" Dkt. 156,
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pp. 6:14-15 & 7:17-18. (This court notes that the debtor's only claim objection is the statute of limitations - she does not argue that there was no debt owed by her in the first place.) There are at least three problems with the debtor's reliance on this last item "(c)".
First, the debtor fails to provide a (redacted) copy of the credit report. The debtor's hearsay summary of that report is insufficient to shift the burden to the claimant to show the lack of a statute of limitations defense.
Second, the debtor tacitly admits that she and her husband were both involved in credit transactions for which she is liable, but she only refers to "my" credit report, not his. The claimant's business records show that someone made a payment on "06/05/2009" (see dkt. 156, p.6:10), so the debtor's alleged credit report showing that she did not make a payment is insufficient to overcome the creditor's evidence that a payment was made. (The debtor at times refers to "reports" - plural - which implies that she already has her husband's credit report. But if the debtor does not have her husband's credit report, and cannot obtain it, then she can seek discovery if she truly believes that neither she nor her husband made the payment that the claimant's record shows was made.)
Third, the debtor has brought the identical claim objection to three claims, so she is suggesting that three separate proofs of claim coincidentally made the same mistake of reflecting payments that were not actually made. This court assumes without deciding that a credit report plus the debtor's memory would outweigh the evidentiary effect of a single proof of claim (unsupported by a monthly statement showing the debtor's name). But it is implausible that three separate proofs of claim signed under penalty of perjury, supported by three separate sets of business records, would all make the same mistake of reflecting payments that were never made. It is unclear if there is any explanation for this alleged coincidence, but perhaps the debtor can offer one. See generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face") (citation omitted, emphasis added). See also Rule 9014(c) (Fed. R. Bankr. P.) (rules applicable to complaints can apply to contested matters).
The bottom line is that the debtor has the burden to show a statute of
limitations defense, and her hearsay, partial, and implausible evidence is inadequate to shift the burden to the claimant to show the lack of such a defense. As this court has explained before, the debtor must meet her
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burden of proof even absent a written response by the claimant, especially because it generally costs more for the claimant to respond to unmeritorious claim objections than the claim is worth. See Case No. 2:13-bk-15745-NB, Dkt. 134, p.15.
Caveats
By way of background this court notes that the debtor's case has been dismissed due to the debtor's failure to turn over tax refunds of over $17,000 (despite numerous notifications that she was required to do so). Now she hopes that if she can reduce her claims and pay an increased dividend, or even pay her creditors in full, then she can have the dismissal vacated and obtain her chapter 13 discharge.
First, this tentative ruling should not be read to suggest that if the debtor files an amended claim objection satisfying the conditions described above that will necessarily result in disallowance of the claim. For example, the claimant could raise additional responses, or whatever amended claim objection the debtor files could raise issues that this court has not yet anticipated.
Second, this tentative ruling should not be read to imply that, even if this claim and other claims are disallowed and the debtor pays all remaining claims in full, the dismissal of the debtor's case will be vacated. This court has often expressed concerns about the "moral hazard" of establishing a practice of excusing a debtor's failure to turn over tax refunds - which is essentially the theft of funds that belong to the estate - if the only condition is that the debtor pays back the funds. That is essentially an incentive to engage in such theft because there is no penalty for getting caught except return of the funds.
Third, this tentative ruling should not be read as an assurance that whatever the debtor's counsel might charge the bankruptcy estate will be justified by a cost/benefit analysis. Of course, if the debtor can afford to pay counsel's fees and also pay 100% of all allowed claims then counsel's fees will meet the cost/benefit test; but if the debtor proposes to pay her creditors less than 100%, in order to pay her attorney to overcome her theft of funds from the estate, then it will be more difficult to show that the expenditure of those funds is warranted from a cost/benefit perspective.
Conclusion
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The tentative ruling is that the debtor can choose to file and serve an
amended claim objection, objecting to claim no. 4-2, if she can provide (redacted) credit report(s) for herself and her husband and an argument and/or evidence for why it is plausible that three proofs of claim filed under penalty of perjury and supported by business records would all be incorrect about the dates of the last payments. If the debtor does not file and serve such amended documents, then the tentative ruling is that she must, within seven days of this hearing, lodge a proposed order denying her claim objection (without prejudice).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jacqueline Beoglyan Represented By Thomas B Ure
Movant(s):
Jacqueline Beoglyan Represented By Thomas B Ure Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 9/14/17, 10/5/17, 12/7/17
Docket 32
Tentative Ruling for 2/8/18 (same as for 12/7/17):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to inform this court about the status of the court ordered mediation.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 10/5/17:
Appearances required. This court is prepared to give a detailed oral ruling, but before doing so this court wishes to address some preliminary issues with counsel for both parties, including (a) whether there is any problem that might arise due to the fact that the debtor's husband is not part of this proceeding and (b) whether there are any problem that might arise from the fact that there was - and perhaps still is - an action in nonbankruptcy court that apparently was never finished.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 10/5/17:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Terica Amber Roberts Represented By Dheeraj K Singhal
Movant(s):
Terica Amber Roberts Represented By Dheeraj K Singhal Dheeraj K Singhal
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 7/20/17, 10/5/17, 12/7/17
Docket 26
Tentative Ruling for 2/8/18 (same as for 12/7/17, 10/5/17 and 7/20/17): Appearances required. There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sandra Delores Harding Represented By Kevin T Simon
Movant(s):
Sandra Delores Harding Represented By Kevin T Simon Kevin T Simon Kevin T Simon
8:30 AM
Trustee(s):
Kevin T Simon Kevin T Simon
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 12/07/17
Docket 42
- NONE LISTED -
Debtor(s):
Eva Anderson Represented By Andre A Khansari
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 1/11/18
Docket 24
Tentative Ruling for 2/8/18:
Appearances are required for the debtor's counsel on 2/8/18. The tentative ruling is to continue to 3/8/18 at 8:30 a.m. to address the following issues, with a caution to the debtor's counsel not to disregard this court's rulings.
This court presumes that counsel will not charge for this appearance - if that is incorrect then counsel must address at the hearing why any such fees should be permitted.
At the 1/11/18 hearing, this court continued the matter to allow the debtor time to cure the (1) deficiencies in service and (2) lack of a sufficient cost/benefit analysis. The debtor has since filed a declaration (dkt. 36) that addresses only the latter issue. The issue of service appears to remain unresolved: this claim objection (dkt. 24) has not yet been served on the claimant at the address for notices listed in the proof of claim.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Continue to 2/8/18 at 8:30 a.m. to address the following issues. Appearances are not required on 1/11/18.
Reasons:
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Service
The claim objection (dkt. 24, 26) was not served on the claimant at the address for notices listed in the proof of claim.
The claim objection fails to include a sufficient cost/benefit analysis Judge Bason's posted Procedures (available at
www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that the cost/benefit analysis might be favorable to bringing this objection (see dkt. 20, p.2), but that does not obviate the need to provide that analysis. No later than 1/25/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection (so as not to further waste the time of this Bankruptcy Court, the claimant, and any other parties in interest in addressing this matter).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Charles W Martin Represented By Sundee M Teeple Craig K Streed Cynthia L Gibson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 1/11/18
Docket 28
Tentative Ruling for 2/8/18:
Appearances are required for the debtor's counsel on 2/8/18. The tentative ruling is to continue to 3/8/18 at 8:30 a.m. to address the following issues, with a caution to the debtor's counsel not to disregard this court's rulings.
This court presumes that counsel will not charge for this appearance - if that is incorrect then counsel must address at the hearing why any such fees should be permitted.
At the 1/11/18 hearing, this court continued the matter to allow the debtor time to cure the (1) deficiencies in service and (2) lack of a sufficient cost/benefit analysis. The debtor has since filed a declaration (dkt. 35) that addresses only the latter issue. The issue of service appears to remain unresolved: this claim objection (dkt. 28) has not yet been served on the claimant at the address for notices listed in the proof of claim.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Continue to 2/8/18 at 8:30 a.m. to address the following issues. Appearances are not required on 1/11/18.
Reasons:
8:30 AM
Service
The claim objection (dkt. 28) was not served on the claimant at the address for notices listed in the proof of claim.
The claim objection fails to include a sufficient cost/benefit analysis Judge Bason's posted Procedures (available at
www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that the cost/benefit analysis might be favorable to bringing this objection (see dkt. 20, p.2), but that does not obviate the need to provide that analysis. No later than 1/25/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection (so as not to further waste the time of this Bankruptcy Court, the claimant, and any other parties in interest in addressing this matter).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Charles W Martin Represented By Sundee M Teeple Craig K Streed Cynthia L Gibson
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 190
- NONE LISTED -
Debtor(s):
Rodney Edward Donkin Jr Represented By Louis J Esbin
Movant(s):
Wells Fargo Bank, N.A. as Trustee Represented By
Robert P Zahradka Tina R Lyons
Gagan G Vaideeswaran Joseph C Delmotte
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, NATIONAL ASSOCIATION vs
DEBTOR
Docket 63
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Salomon Zubiate Represented By Raymond Perez
Movant(s):
U.S. Bank, National Association as Represented By
Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PRIMELENDING
vs DEBTOR
Docket 26
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Roberto Lopez Gomez Represented By Theresa Hana
Movant(s):
PrimeLending, A PlainsCapital Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERILHOME MORTGAGE COMPANY, LLC
vs DEBTOR
Docket 26
- NONE LISTED -
Debtor(s):
Steven John Navarro Represented By Gregory M Shanfeld
Movant(s):
AmeriHome Mortgage Company, Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 30
- NONE LISTED -
Debtor(s):
Albert Sanford III Represented By Kahlil J McAlpin
Joint Debtor(s):
Kimberly Rochell Dupree-Sanford Represented By
Kahlil J McAlpin
Movant(s):
U.S. Bank National Association, as Represented By
Renee M Parker
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NEW PENN FINANCIAL, LLC
vs DEBTOR
Docket 24
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Philip J Reddick Represented By Thomas B Ure
Movant(s):
New Penn Financial, LLC d/b/a Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] NATIONSTAR MORTGAGE, LLC
vs
DEBTOR
Docket 35
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and/or the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
10:00 AM
If this order is duly recorded in compliance with applicable State laws
governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
Attorney fees. Movant may add its attorney fees to the debt to the full extent permitted by nonbankruptcy law.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ramona Muro Reyes Represented By Michael E Clark
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Kelsey X Luu Josephine E Salmon
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
#8.00 [CASE DISMISSED ON 12/15/2017]
Hrg re: Motion for relief from stay [RP] CTF ASSET MANAGEMENT, LLC
vs DEBTOR
Docket 18
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk- 10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no
10:00 AM
automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gabriel Torres Pro Se
Movant(s):
CTF ASSET MANAGEMENT, Represented By Joshua L Scheer Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] WELLS FARGO BANK, NA
vs
DEBTOR
Docket 12
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk- 10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws
10:00 AM
governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Reyes Palacios Jr. Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
C. LLOYD FREEMAN FAITH S. FREEMAN vs
DEBTOR
Docket 9
- NONE LISTED -
Debtor(s):
Sylvanna Cancino Pro Se
Movant(s):
C. LLOYD FREEMAN and FAITH Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] DEUTSCHE BANK NATIONAL TRUST CO
vs
DEBTOR
Docket 32
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003). Relief notwithstanding future bankruptcy cases.
10:00 AM
Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk-
10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Beatriz Jimenez Pro Se
Movant(s):
Deutsche Bank National Trust Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 36
- NONE LISTED -
Debtor(s):
Beatriz Jimenez Pro Se
Movant(s):
Beatriz Jimenez Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORP
vs DEBTOR
Docket 22
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jose G Garcia Represented By
Julie J Villalobos
Joint Debtor(s):
Maria E. Garcia Represented By Julie J Villalobos
Movant(s):
TOYOTA MOTOR CREDIT Represented By Mark D Estle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HONDA LEAST TRUST
vs DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
John Mapili Quibina Represented By Theresa Hana
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
Trustee(s):
Carolyn A Dye (TR) Pro Se
10:00 AM
DEUTSCHE BANK TRUST COMPANY AMERICAS
vs DEBTOR
[Case dismissed 1/29/18]
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
10:00 AM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charlene Mitchell Pro Se
Movant(s):
Deutsche Bank Trust Company Represented By Laurie Howell
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 10
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Allyson M Theophile Represented By Matthew D Resnik
Movant(s):
Allyson M Theophile Represented By Matthew D Resnik Matthew D Resnik Matthew D Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DYLAN COOPER PAUTSCH MYERS, LLC
vs DEBTOR
Docket 26
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Robert Garviria Pro Se
Joint Debtor(s):
Adriana Juarez Pro Se
Movant(s):
Dylan Cooper Pautsch Myers LLC Represented By
Laurie Howell
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 48
Debtor(s):
Dora A Navarro Represented By Joseph S Park
Movant(s):
Ditech Financial LLC Represented By Andrew Kussmaul Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Cont'd hrg re: Motion for relief from stay [RP] fr. 8/15/17, 10/17/17, 12/5/17
WELLS FARGO BANK, NA
vs DEBTOR
Docket 43
Tentative Ruling for 2/13/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17 (same as for 10/17/17 and 8/15/17): Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 46).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Valentina Frausto Represented By Joseph M Hoats
Movant(s):
Wells Fargo Bank, N.A. Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 28
Tentative Ruling for 2/13/18 (same as for 12/5/17):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) the status of their negotiations, (b) whether the alleged arrears have been brought current, and/or (c) whether they will agree to the terms of an adequate protection order (see the debtor's response, the parties' prior stipulation to a continuance, and the order thereon, dkt. 30-33).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Blanca Illiana Murillo Represented By
Hale Andrew Antico
10:00 AM
Movant(s):
PENNYMAC LOAN SERVICES, Represented By
Ciro Mestres John D Schlotter Robert P Zahradka Jenelle C Arnold
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SPECIALIZED LOAN SERVICING LLC
vs DEBTOR
Docket 46
Debtor(s):
Lucy Ahumada Represented By Andrew P Altholz
Movant(s):
Specialized Loan Servicing LLC Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA.
vs DEBTOR
Docket 26
Tentative Ruling for 2/13/18 (same as for 1/9/18 and 11/7/17 except encouraging telephonic appearances):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 1/9/18 and 11/7/17 hearings on the motion, this court continued the hearings at the request of the parties to provide them additional time to negotiate the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kevin Milan Williams Represented By Scott Kosner
Movant(s):
WELLS FARGO BANK, N. A. Represented By
10:00 AM
Trustee(s):
Dane W Exnowski
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 14
Tentative Ruling for 2/13/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Background. This matter was restored to the calendar pursuant to this court's adopted tentative ruling for 6/20/17 (reproduced below) and the movant's notices (dkt. 56, 57).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
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Relief notwithstanding future bankruptcy cases.
Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk- 10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Take off calendar, in view of this court's order (dkt.30, para. 14) granting the debtor's motion to commence loan modification program, without prejudice to the movant self-calendaring this motion again if the loan modification program is terminated without a consensual loan modificaton. Appearances are not required.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
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Tentative Ruling for 5/23/17:
Continue to 6/20/17 at 10:00 a.m. to be heard concurrently with the debtor's motion to continue the stay under 11 U.S.C. 362(c)(3), for the reasons stated at the prior hearing on that motion and in the debtor's response (dkt. 23) to this motion; provided that if the movant wishes to assert the 30 day limitation in 362(e) then it must contest this tentative ruling. Appearances are not required on 5/23/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Debtor(s):
Mia A. McNulty Represented By Heather J Canning Barry E Borowitz
Movant(s):
WELLS FARGO BANK, N.A. Represented By Jamie D Hanawalt Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Cont'd hrg re: Motion for Relief from Stay [RP] fr. 1/9/18
INTERNATIONAL CITY MORTGAGE, INC
vs DEBTOR
Docket 27
Tentative Ruling for 2/13/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 30).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Matthews Represented By Andrew Moher
Joint Debtor(s):
Monica Matthews-Diaz Represented By Andrew Moher
Movant(s):
International City Mortgage, Inc. Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 143
Tentative Ruling for 2/13/18:
Please see the tentative ruling for calendar no. 26, on the 10:00 a.m. calendar, 2/13/18.
Tentative Ruling for 12/12/17:
Continue to 2/13/17 at 10:00 a.m. Appearances are not required on 12/12/17.
(Same reasons as for calendar no. 10, on the 10:00 a.m. calendar, 12/12/17.)
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 144
Tentative Ruling for 2/13/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the trustee should be prepared to address the status of the trustee's investigation into the alleged pre-petition transfer.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Continue to 2/13/17 at 10:00 a.m. Appearances are not required on 12/12/17.
Reasons for continuance
Insufficient Service
The proof of service filed in support of the motion does not reflect service on the debtor to the attention of the appropriate person(s), in
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accordance with Rules 4001 and 7004(b)(3) (incorporated by Rule 9014(b), Fed. R. Bankr. P.), and Local Bankruptcy Rule 4001-1(c)(1)(C)(i). Under Judge Bason's posted procedures (at www.cacb.uscourts.gov), he generally does not sua sponte require that specific individuals be named - service can be "Attn: Officer or Managing/General Agent" or a similar phrase - but in the circumstances of this case, in which there are disputes regarding who is or is not authorized to represent the debtor, Judge Bason will direct that service be
(i) on the debtor at its address of record "Attn: Philip Layfield, Officer of Record" and also, in a separate envelope, (ii) on the debtor at its address of record "Attn: Any Officer Other Than Philip Layfield."
Chapter 11 Trustee's Request for Extension
This court has reviewed the chapter 11 trustee's reponse (dkt. 152) to the motion, and movant's reply (dkt. 159). Given that this case is an involuntary case and the trustee has not had the benefit of any bankruptcy schedules, any statement of financial affairs, or access to the debtor's principals, this court is not persuaded by movant's argument that the trustee has already had sufficient time to investigate the alleged pre-petition transfer. In addition, the trustee has provided adequate evidence that the equity cushion and the relatively short delay provide adequate protection.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
10:00 AM
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
[2015 BMW 5 Series Sedan 4D 528i] FINANCIAL SERVICES VEHICLE TRUST
vs DEBTOR
Docket 22
Debtor(s):
Carmen Michelle Taylor Gentry Represented By Matthew D Resnik
Movant(s):
Financial Services Vehicle Trust Represented By
Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
[2015 BMW 3 Series Sedan 4D 320i] FINANCIAL SERVICES VEHICLE TRUST
vs DEBTOR
Docket 21
Debtor(s):
Carmen Michelle Taylor Gentry Represented By Matthew D Resnik
Movant(s):
Financial Services Vehicle Trust Represented By
Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA.
vs DEBTOR
Docket 26
Tentative Ruling for 2/13/18 (same as for 1/9/18 and 11/7/17 except encouraging telephonic appearances):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 1/9/18 and 11/7/17 hearings on the motion, this court continued the hearings at the request of the parties to provide them additional time to negotiate the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kevin Milan Williams Represented By Scott Kosner
Movant(s):
WELLS FARGO BANK, N. A. Represented By
10:00 AM
Trustee(s):
Dane W Exnowski
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK NA
vs DEBTOR
Docket 16
Debtor(s):
Earl Brian Williams Represented By Brad Weil
Joint Debtor(s):
LaDonna Marcella Williams Represented By Brad Weil
Movant(s):
Wells Fargo Bank NA Represented By Tunisia Cooper Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
complaint objecting to discharge (11 U.S.C. section 727)
Docket 170
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Richard A Sorci Pro Se
Joint Debtor(s):
Judy E Sorci Pro Se
Movant(s):
Timothy Yoo (TR) Represented By Carmela Pagay
Trustee(s):
Timothy Yoo (TR) Represented By Carmela Pagay
11:00 AM
Docket 240
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brian Lee Represented By
Christian T Kim
Movant(s):
Brad D Krasnoff (TR) Represented By John N Tedford
Trustee(s):
David A Gill (TR) Represented By John N Tedford Aaron E de Leest
11:00 AM
Adv#: 2:17-01485 Gonzalez v. Macmillan et al
Docket 1
Tentative Ruling for 2/13/18:
Continue this status conference to be concurrent with the hearing on the pending summary judgment motion, which is presently scheduled for 3/20/18 at 11:00 a.m. Appearances are not required on 2/13/18.
This court has reviewed the parties' late-filed joint status report (adv. dkt. 10, 11) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (at the hearing on 12/5/17). See also adv. dkt. 10, 11.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The court has reviewed the parties' joint status report
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(dkt. 5) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
This court recognizes that, at least at this stage, the attorney who filed the answer (dkt. 4) for both trustees of the trust has also executed the Status Report (dkt. 5) on behalf of one of the defendant trustees (the debtor/defendant) asserting that neither of them can consent to this Bankruptcy Court entering a final judgment because third party beneficiaries of the trust allegedly have a right to have their rights litigated "outside of this venue." Counsel for the answering defendants should be prepared (a) to explain whether this is a Stern objection or something else and (b) whether both answering defendants or only one of them takes this position, and if the former, why he did not execute the status report on behalf of both of them.
Counsel for the plaintiff should be prepared to address whether the plaintiff contends that there are no additional parties who need to be joined, and why.
Mediation. The plaintiff suggests in the Status Report (adv. dkt. 5) that mediation, if any, should not be ordered before dispositive motion(s) are heard, which the plaintiff anticipates will be by 3/1/18. The tentative ruling is
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to revisit the issue of mediation after that date.
Deadlines: This adversary proceeding has been pending since 9/26/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 3/1/18 Expert(s) - deadline for reports: 2/20/18
Expert(s) - discovery cutoff (if different from above): 3/1/18 Dispositive motions to be heard no later than: 3/13/18 Joint Status Report: 1/30/18
Continued status conference: 2/13/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 4/10/18 Pretrial conference: 4/17/18 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 4/19/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 4/23/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By
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Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
11:00 AM
Docket 17
Grant subject to (a) adequate service and (b) any oppositions presented at the hearing (see Order, dkt. 24). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Derek Campbell Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
Docket 71
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
1:00 PM
Docket 1
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
1:00 PM
Docket 1
Tentative Ruling for 2/13/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 127) and Disclosure Statement (dkt. 126).
Impairment - Class 2B. The Plan lists Class 2B as unimpaired - is it?
Impairment - Class 4A. The Plan does not specify whether Class 4A is impaired.
DIP Financing. Class 2C appears to consist of the debtor's contemplated postpetition DIP borrowing (dkt. 111, 121). First, classes under the Plan are reserved for prepetition debts, whereas repayment of postpetition DIP financing should be reflected in cash flow projections (Ex.C) (this is not just an academic issue: for example, Classes vote; DIP lenders do not).
Second, Endnote 2C (in Ex.H) appears to relate to this "Class" of DIP fiancing, and it appears to state that the terms of that financing are unknown ("Debtors will have full and accurate loan information as the loan is processed"). The debtors' counsel must address at the hearing whether there is any reason why the Plan cannot be updated to reflect the actual financing terms, which would eliminate the need for any such Endnote.
Stipulation with US Bank. The Plan should attach a copy of the Stipulation (dkt. 124) with creditor U.S. Bank N.A. (as trustee); Wells Fargo Home Mortgage as servicer (collectively, "US Bank"), as it may be modified (see below re possible amendments to that Stipulation). See dkt. 129 (limited objection of US Bank).
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US Bank's concerns (dkt. 129). This Court's posted procedures
(available at www.cacb.uscourts.gov, under Judge Bason) provide in part:
§ 362: Automatic Stay. (1) Stipulations. Generally, the judge will not approve a stipulation for relief from stay/adequate protection order (“APO”) that purports to be automatically effective ... because there might be equity in the property [Emphasis altered.]
Consistent with this limitation, US Bank agreed to an Adequate Protection Order ("APO") which does not provide for any automatic termination of the automatic stay. Instead it provides (in the APO attachment, at paragraph 6.b.) that in the event of a default:
[US Bank] may file and serve a declaration under penalty of perjury specifying the default, together with a proposed order terminating the stay, which the court may grant without further notice or hearing.
More recently, however, US Bank entered into its Stipulation with the debtors (dkt. 124) which not only includes the above-quoted language about what will happen in the event of a pre-confirmation default but goes on to add another clause. It states:
5. [US Bank] may file and serve a declaration under penalty of
perjury specifying the default, together with a proposed order Terminating the Automatic Stay, which the Court may grant without further notice or hearing, and Creditor (and/or its servicer) may commence any and all action necessary to obtain complete possession of the Subject Property without further notice,
order, or proceeding of this Court. [Emphasis added.] US Bank argues (dkt. 129, p.6:3-12) that this language in the
Stipulation was "taken from" the APO (para. 6.b.), but this is not quite accurate: the emphasized language has been added. Does that additional language mean anything? US Bank now appears to argue that it means nothing - that "the intent was simply to maintain the status quo like it is under the APO" (dkt. 129, p.6:6).
This Court agrees: the emphasized language appears to be surplusage; but unfortunately it is arguably subject to a different interpretation. Because it is unusual for parties to add meaningless language to their stipulations, the emphasized language arguably could be read to mean that US Bank could "commence" all actions necessary to foreclose without any order of this court.
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Because of this (and other) ambiguities in the Stipulation this Court
added the following caveat in its order approving the Stipulation:
... notwithstanding anything in the Stipulation to the contrary, the automatic stay will not automatically terminate upon a default or conversion of this case except as to Debtors (i.e., no automatic termination as to the bankruptcy estate, so as to preserve any equity that might then exist in the property for the benefit of other creditors) [Dkt. 128, p.2:5-8, emphasis in original]
US Bank now requests "that the Order [approving the Stipulation] be amended to clarify that any pre-confirmation default shall be in accordance with the [Stipulation] at paragraph 5, or in the alternative, pursuant to the existing APO, paragraph 6(b)." Dkt. 129, p.6:10-12. This Court believes the simpler solution - both in this case and in all future cases - would be to delete the surplus language in paragraph 5 of the Stipulation. US Bank's counsel should be prepared to address whether they will agree to delete the surplus language in paragraph 5 of the Stipulation in this case and in all future stipulations in any case before this Court.
Similarly, paragraph 13 of the Stipulation ends by stating that in the event the debtors' case is dismissed or converted then not only shall US Bank retain its lien securing the full dollar amount it is owed (less any payments received) but also "the Automatic Stay shall be terminated without further notice, order or proceeding of the Court." (Emphasis added.) US Bank has now agreed to delete this emphasized language. See dkt. 129, pp.5:26- 6:2. Again, US Bank's counsel should be prepared to address whether they will delete this language in all future stipulations in cases before this Court.
Another concern raised by US Bank is that this Court's language in the order approving the Stipulation (quoted above) appears to limit paragraph 6 of the Stipulation, which provides that upon confirmation of debtors' chapter 11 plan "the Automatic Stay shall be deemed terminated as to the Debtors and the estate" and US Bank can pursue its contractual remedies under the loan documents "without further notice, order, or proceeding of this Court." Dkt.
124, p.4:12-18. This Court did not intend to override that provision - the tentative ruling is that upon confirmation of a chapter 11 plan it is entirely appropriate to provide that the automatic stay no longer applies because then the parties have a revised contractual relationship - so US Bank is correct that the order approving the Stipulation is overbroad to the extent that the language added by this Court affects paragraph 6 of the Stipulation.
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Based on all of the foregoing, the tentative ruling is that if US Bank will agree to amend its Stipulation in paragraphs 5 and 13 as set forth above (to delete the language about automatic termination of the automatic stay), and leave paragraph 6 unchanged, this Court will approve that Stipulation without the modification that is included in the current order approving the Stipulation. The debtor will need to attach the amended Stipulation to the Plan.
Note: The parties might wish to take the opportunity to review the Stipulation for any other provisions that would benefit from revision. For example, this Court notes that paragraph 13 of the Stipulation starts by providing that "[t]he terms of this Stipulation are contingent upon Debtors' confirming a Chapter 11 Plan." Dkt. 124, p.6:8-8. Read literally this would mean that the Stipulation's terms regarding pre-confirmation defaults (para. 5) are contingent upon confirmation, which makes no sense. Other provisions similarly do not appear to be intended to be contingent on confirmation (but it is up to the parties to decide if they wish to clarify such issues).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 127)/Disclosure Statement (dkt. 126)*: 2/27/18 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference, with a revised stipulation with US Bank attached, and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 4/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue this status conference to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtors' apparent need to amend the proposed plan in view of the recent withdrawal of their objection to the prior claim of the Internal Revenue Service ("IRS") in view of the IRS' amended claim (see dkt. 119);
the debtor's failure to file a brief status report (due 1/16/18 per the adopted tentative ruling for the 11/7/17 hearing, reproduced below); and
the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the federal government.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Continue to 1/23/18 at 1:00 p.m. to address the following issues. Appearances are not required on 11/7/17.
Reasons: This court is continuing the hearing in light of the response filed by the IRS (dkt. 105) and because (1) if the dollar amount owed to the IRS changes then changes also will be needed to the amended plan (dkt. 107) and amended disclosure statement (dkt. 106) and (2) although the debtor correctly deleted Endnotes 2, 2A, 2B and 2C from Exhibit H, the debtor forgot to delete the references to those (non-existent) endnotes on Exhibits A and E. No later than 1/16/18 the debtor is directed to file an amended plan to cure these issues, if possible, or alternatively a very brief status report (e.g., one or
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two sentence).
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/19/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Monthly Operating Report (dkt. 94). What is the $700 transfer for 8/31/17 (at p.4) entitled "money owed"? The debtor reports one missed payment to Wells Fargo in the amount of $2,167.68 (at p.10), as against onl y
$2,398.12 in her rental property account (p.11) and $1,404.57 in her personal account. Is the debtor losing money? Can the debtor propose a feasible plan of reorganization?
Plan (dkt.92) /Disclosure Statement (dkt. 91). (i) These documents are not signed by the debtors ("/s/" typed signatures are only permitted for limited categories of persons, such as registered CM/ECF users). (ii) The Disclosure Statement contemplates claim objections (dkt. 91, Ex.H, Endnotes 1-2). Why have these issues not been resolved by now? (iii) The Disclosure Statement's Endnotes 2A, 2B, 2C and 5 repeat (and/or misstate) the terms of the Plan. Those endnotes should be deleted. (iv) The Disclosure Statement's Ex.C (income/expenses) is divided into two periods, but the income and expenses appear to be identical in each period. Why should this not be a single period?
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt.92) /Disclosure Statement (dkt. 91)*: 10/24/17 deadline to file amended documents.
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Status Report. The debtor is using an outdated form. The current version is Local Form F 2081-1.1.CH11.STATUS.RPT.
Cash collateral motion (dkt. 30). Grant on a final basis, on the same terms as in the interim order (dkt. 58).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/5/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee).
Continued status conference: 9/19/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
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Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
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fr. 4/12/16, 04/26/16, 05/17/16, 8/2/16, 9/6/16, 11/8/16, 11/29/16, 1/17/17, 1/31/17, 03/21/17, 4/11/17, 06/13/17,
9/19/17, 11/14/17
Docket 271
Tentative Ruling for 2/13/18:
Continue to 7/10/18 at 1:00 p.m. as suggested in the debtor's latest post- confirmation status report (dkt. 272, para. 10). Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Continue to 2/13/18 at 1:00 p.m. Appearances are not required on 11/14/17.
Reasons: The debtor's post-confirmation status report (dkt. 270) appears to show sufficient progress and compliance with the confirmed Plan (dkt. 227, confirmed by order at dkt. 253). Therefore the tentative ruling is to continue this status conference to allow the parties more time to reach a resolution with regards to the Tchoupitoulas property.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/19/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Continuance. The debtor's post-confirmation status report (dkt. 264) appears to show sufficient progress and compliance with the confirmed Plan (dkt. 227, confirmed by order at dkt. 253). Therefore the tentative ruling is to continue this status conference to 11/14/17 at 1:00 p.m.
Request for early discharge. The same status report (dkt. 264, para. 7-10) suggests that the pendency of this case is impeding the debtor's ability to finish reorganizing his finances, and therefore the debtor may seek to close the case, but he is concerned that creditors may misinterpret that as permission to pursue him for prepetition debts (beyond enforcement of any such debts that survive in his Plan obligations) and therefore he may seek to obtain an early discharge of any debts that are not being paid under the Plan. That anticipated request is not presently before this court, but in the context of this status conference it is appropriate to address any standing policies of this court and any procedures that should be established regarding any such request.
Under the terms of the Bankruptcy Code, incorporated into the confirmed Plan (dkt. 227, p.4, Art.IV.A.) (see also Disclosure Statement, dkt. 228, p.2, summarizing same), without modification by the confirmation order (dkt. 253), there are only limited circumstances in which the debtor can obtain a discharge prior to the 84 month term for completion of payments to general unsecured creditors:
IV.A. Pursuant to § 1141(d)(5), Debtor will not be discharged
from any debts unless and until (1) Debtor completes all payments “under” the Plan and obtains an order of the court granting a discharge (§ 1141(d)(5)(A)&(C)) – for purposes of this Plan payments that extend beyond the Plan Term stated in Exhibit A are not considered payments “under” the Plan (e.g., if the Plan Term is 5 years then Debtor will be eligible for a discharge under this clause
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if 5 years of payments are made, but the debtor will remain
obligated on obligations that extend beyond the Plan Term, such as a 30-year mortgage); (2) the court grants a limited (“hardship”) discharge (§ 1141(d)(5)(B)&(C)); or (3) the court “orders otherwise for cause” (§ 1141(d)(5)(A)&(C)). [Dkt. 227, p.4 (emphasis added)]
The debtor should be prepared to address whether he will pursue his stated intent to seek an early discharge, and if so on what grounds, and pursuant to what procedures.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 6/13/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 227) and disclosure statement (dkt. 228) & errata (dkt. 246). The parties should be prepared to address the objection by CitiMorgage, Inc. (dkt. 237) and the debtor's responses (dkt. 242, 250) as well as the ballot summary (dkt. 243) and whether the SEC has been or needs to be served (see dkt. 230 at p.1:23-24, and dkt. 236).
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Continued status conference: TBD
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
This court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 4/11/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Creditor CitiMortgage's objection (dkt. 217). As creditor CitiMortgage points out in its objection, its treatment under the plan is not properly specified in Exhibit A1. In addition, CitiMortgage refers to a possible stipulation. What is the status of this stipulation and/or any negotiations between the debtor and CitiMortgage?
Amended Chapter 11 Plan and Disclosure Statement (dkt. 183- 186). This court will review the other minor issues with these documents orally at the hearing.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: 4/13/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 5/9/17 at 1:00 p.m. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/21/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
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Status of financing. The debtor should be prepared to address the status of his attempts to obtain financing (dkt. 212) and the effects on this case.
Chapter 11 Plan and Disclosure Statement. The parties should be prepared to address whether the debtor has a viable alternative to his previously filed plan and disclosure statement (dkt. 185-186), and alternatively whether he intends to proceed under those documents and whether that is viable.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: to be addressed at the hearing.
Continued status conference: 4/25/17 at 1:00 p.m. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/31/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Financing transaction (dkt. 191) and Amended Chapter 11 Plan and Disclosure Statement (dkt. 183-186). The debtor should be prepared to address how the proposed financing will change the plan documents.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: this court anticipates setting the following deadlines: 2/10/17 to file (NOT SERVE - except on the
U.S. Trustee) any revised versions of these documents, to be discussed at the status conference, and to lodge a proposed order (on the form posted on Judge Bason's portion of the court's web page) setting a combined hearing for 4/25/17 at
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1:00 p.m. on final approval of the disclosure statement and confirmation of the plan.
Continued status conference: 2/7/17 at 1:00 p.m. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/17/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Amended Chapter 11 Plan and Disclosure Statement (dkt. 183-186).
This court will review minor issues with these documents orally at the hearing.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: this court anticipates setting the following deadlines: 1/19/17 to file (NOT SERVE - except on the
U.S. Trustee) any revised versions of these documents, to be discussed at the status conference, and to lodge a proposed order (on the form posted on Judge Bason's portion of the court's web page) setting a combined hearing for 3/21/17 at 1:00 p.m. on final approval of the disclosure statement and confirmation of the plan.
Continued status conference: Same date and time and combined disclosure statement/plan hearing. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
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Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Amended Chapter 11 Plan and Disclosure Statement (dkt. 174, 175, 177). This court will review various issues with these documents orally at the hearing.
Deadlines/dates. This case was filed on 2/17/16.
(1) Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: this court anticipates setting the following deadlines: 12/19/17 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference.
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 1/17/17 at 1:00 p.m. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/8/16:
Continue to 11/29/16 at 2:00 p.m. for the reasons stated in the debtor's pending motion to extend time for filing plan and disclosure statement and extend exclusivity (dkt. 166). Appearances are not required on 11/8/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
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Revised Tentative Ruling for 9/6/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issue: objection to AOK claim
This court has reviewed the debtor's objection (dkt. 121) to proof of claim 9-1, filed by AOK Brothers, LLC (AOK); AOK's opposition (dkt. 147); and the debtor's reply to the objection (dkt. 150).
Default interest
The parties do not appear to disagree on the legal standards. The debtor does not (at this time) seek to disallow default interest pursuant to any "cure" concept under bankruptcy law. Cf., e.g., GECC v. Future Media, 547 F.3d 956 (9th Cir. 2008); In re Entz-White Lumber and Supply, Inc., 850 F.2d 1338 (9th Cir. 1988). Rather, the debtor relies on California law. See generally In re Kord Enterprises II, 139 F.3d 684, 687 (9th Cir. 1998).
As stated by the California Supreme Court, the analysis under California law is to determine whether default rates of interest are either permissible liquidated damages or an impermissible penalty:
[California Civil Code] Section 1671 authorizes the assessment of agreed-upon and anticipated damages only when the fixing of the actual damages which would be sustained upon a breach would be "impracticable" or "extremely difficult." Where, as here, the issue is presented on admitted facts it is one of law and must be examined from the position of the parties at the time the contract was entered into. The party seeking to rely on a liquidated damages clause bears the burden of proof. [¶] "The validity of a clause for liquidated damages requires that the parties to the contract 'agree therein upon an amount which shall be presumed to be the amount of damages sustained by a breach thereof....'" (Civ. Code, § 1671.) This amount must represent the result of a reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be sustained. [Garrett v. Coast & Southern Fed. Sav. & Loan Assn., 9 Cal.3d 731 (1973) (citations and some internal quotation marks omitted, emphasis added). See also Ridgley v.
Topa Thrift & Loan Assn., 17 Cal. 4th 970, 981 (Cal. 1998).]
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In this instance, AOK has not met its burden to establish that the default rate of interest is permissible under California law. A five percent (5%) interest rate has not been shown to be a reasonable estimate of liquidated damages, given the $1.3 million equity cushion AOK has in the property. In addition and alternatively, there is no showing of any anticipated damages - beyond the compensation that AOK already can claim through late charges, ongoing interest at the non-default rate, and other things such as attorney fees as set forth below – let alone evidence that the parties made a reasonable endeavor to estimate any such additional losses.
The debtor estimates that AOK's proof of claim includes at least
$15,000 of default interest. The tentative ruling is to set a deadline of 9/20/16 for AOK to file an amended proof of claim that shows the calculation of default interest, and a deadline of 9/27/16 for the debtor to lodge a proposed order, with a copy of this tentative ruling attached, that disallows all default interest (including not just whatever AOK asserts as of the petition date but also any future claim for default interest).
Attorney fees
The debtor's motion requests that AOK's claim be reduced by
$34,221.46 for unreasonable and unnecessary attorney's fees incurred by AOK's counsel. The tentative ruling is to disallow a portion of those fees as set forth below.
The debtor is correct that the loan documents contain confusing provisions regarding attorney fees. But the tentative ruling is that the debtor is incorrect in arguing (dkt. 121, p.5:27-28) that a notice of acceleration or similar predicates were required before he had any obligation to pay AOK's attorney fees.
Some loan document clauses require notices of acceleration or similar predicates
On the one hand, several clauses support the debtor's reading that AOK was required to send a notice of acceleration (or similar predicates) before being entitled to any attorney fees.
The promissory note has a section (section 4.D) providing that "[i]f" immediate full payment is required (acceleration, at AOK's option upon default) then AOK will have the right to be paid its reasonable attorney fees (dkt. 121, Ex.1, at PDF p.30, emphasis added).
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The deed of trust ("DOT") provides (section 17) that if a notice of default is provided and the breach is not timely cured then AOK shall be entitled to collect all reasonable attorney fees "incurred in pursuing the remedies provided in this paragraph 17" (power of sale and other remedies permitted by applicable law). Dkt. 121, Ex.1, at PDF p.48.
The DOT's more general provision regarding protection of AOK's security (section 7) states that if debtor fails to perform then "upon notice to [debtor]" (dkt. 121, Ex.1, at PDF p.46, emphasis added) AOK may disburse sums and take actions necessary to protect its interests including disbursement of reasonable attorney fees.
An addendum to the promissory note (id., at PDF p.35, the "Note Addendum") and a rider to the DOT (dkt. 121, Ex.1, at PDF p.55, the "DOT Rider") both provide that "[i]n the event that" there is a payment default and AOK permits the debtor "to cure the default," then the debtor shall pay AOK "all reasonable attorney fees and costs incurred by [AOK] originating from this default and the cure thereof." (Emphasis added.)
The tentative ruling is that the debtor is correct that his "personal guaranty" of his own obligation is a nullity, so its attorney fee clause (dkt. 147, Ex.B, section 6) is of no force and effect.
Other clauses require the debtor to pay AOK's attorney fees reasonably necessary to bring any late payments current
On the other hand, the Note Addendum and DOT Rider also provide that, if AOK has not received the full amount of any monthly payment by the end of ten calendar days after it is due, the debtor "will promptly pay to [AOK] all costs incurred by [it], including, but not limited to, attorneys' fees reasonably necessary to bring any late payments (overdue payments) current." Dkt. 121, Ex.1, at PDF pp. 35 & 55 (emphasis added). No notice of acceleration or other prerequisite is required for this obligation.
The debtor (dkt. 121, pp. 7:23-8:11 and 8:17-9:3) cites authority that such clauses must be construed narrowly against the lender, and argues that in this light AOK's bankruptcy litigation was not "reasonably necessary to bring any late payments (overdue payments) current." Instead, the debtor argues, AOK's litigation was bankruptcy-related: opposing the debtor's use of cash collateral; seeking to convert this case to one under chapter 7 of the Bankruptcy Code; opposing the debtor's motion to extend the exclusive period in which only he may propose a plan of reorganization; etc.
It is true that the decisions cited by the debtor construe such clauses
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strictly against the lender. See dkt. 121, p.8:1-11 (citing cases); and see, e.g., In re Cukierman, 265 F.3d 846, 852 (9th Cir. 2001); In re Westside Print Works, 180 B.R. 557 (9th Cir. BAP 1995). But a fair reading of the loan documents, even construed against AOK, is that it was "reasonably necessary" to pay attorneys to engage in bankruptcy litigation in order to attempt to "bring any late payments" current. In fact, the whole point of bankruptcy reorganization (by this debtor and most debtors) is to attempt to defer or restructure financial obligations; and in opposing such attempts the creditor is attempting to "bring any late payments" current, as nearly as possible given the constraints of the bankruptcy system on creditors' exercise of their remedies.
Alternatively, even supposing that there were sufficient ambiguity about the loan documents to reach a different conclusion, that ambiguity would be resolved by the letter signed by the debtor (dkt. 147, Ex.E) confirmed that he agrees to pay a late fee "in addition to any legal fees [AOK] incurs in connection with collecting any payment on my loan." Again, a fair reading of this document is that "collecting" payments includes filing a claim in a bankruptcy case, opposing the debtor's attempts to defer or reduce payments, and otherwise engaging in bankruptcy litigation.
For the foregoing reasons, AOK is owed its reasonable attorney fees.
The remaining question is what attorney fees were reasonable.
Reasonableness of AOK's attorney fees
The debtor is correct that, at least on the present record, AOK appears to be greatly oversecured, so much of its litigation was unnecessary to protect its interests and doomed to fail from the outset. In addition, as this Bankruptcy Court has noted before on the record, many of AOK's arguments lacked a sufficient foundation.
On the other hand, as this Bankruptcy Court previously has also observed, the debtor has been sloppy in some aspects of his case management – such as failing to recognize that AOK has an interest in cash collateral; or failing to provide adequate notice to AOK. In addition, the debtor's sloppiness and tendency to overstate his arguments justify greater involvement by AOK than typically might be required for a creditor protected by a substantial equity cushion.
This Bankruptcy Court has taken these things into consideration in reviewing AOK's daily timesheets. That review has been hampered by the fact that AOK's timesheets do not comply with the local rules and guidelines –
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for example, time entries are "lumped" together, and they do not often identify the precise issues addressed (e.g., the subjects of telephone conferences generally are not described). Nevertheless, this Bankruptcy Court has sufficient familiarity with the filed pleadings and records in this case, as well as the approximate amount of fees that normally would be incurred in cases of this sort, to be able to rule on this record. In addition, it does not appear that any party's interests would be served by the expense and delay of further briefing.
In view of the foregoing, the tentative ruling is to reduce AOK's legal fees to date by $14,000.00.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement*: 9/27/16 deadline to file (NOT SERVE, except on the US Trustee, AOK, and any other party requesting special notice) a draft plan and draft disclosure statement on the forms required by Judge Bason.*
Continued status conference: 10/18/16 at 2:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/6/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 8/2/16:
Continue to 9/6/16 at 2:00 p.m. to address the following issues. Appearances are not required on 8/2/16.
On 7/19/16, this Court held a hearing on the debtor's motion to extend exclusivity. At that hearing, this Court excerced its inherent authority to manage its docket and determined that it was appropriate to continue this matter so that it is held concurrently with the debtor's objection to AOK
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Brother's claim.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 5/17/16:
Continue to 6/21/16 at 1:00 p.m. Appearances are not required on 5/17/16.
Current issues
Cash collateral motion. Grant (please see the tentative ruling for matter number 5, 5/17/16 at 1:00 p.m. for this Court's reasoning regarding the debtor's cash collateral motion).
Properties. The tentative ruling is that the debtor has provided an adequate status report (dkt. 81), for present purposes, regarding the two properties as to which there appears to be some confusion regarding ownership: (i) 5255 Tchoupitoulas St., New Orleans Property and (ii) 3324 Octavia, New Orleans, Lousiana.
Claim objections. Once AOK Brothers has filed its proof of claim, and the debtor has filed his objection, this Court will address whether to make preliminary rulings before or after directing the parties to mandatory mediation (note: Judge Bason's policy is to order mediation before one of the volunteer mediators, not a Bankruptcy Judge).
Disclosure statement notice period. The debtor is correct (dkt. 81, para. 25) that the correct period is 42 days (the local rule is outdated and is in the process of being revised).
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement*: file by 9/5/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: Continue as set forth above. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/17/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 4/26/16:
Deny the motion of AOK Brothers, LLC ("AOK") to dismiss or for other remedies (dkt. 51), and set a continued status conference, all as further set forth below. Appearances are not required.
Current issues.
Motion to dismiss etc. (dkt. 51). Deny the motion without prejudice to renewing it at a later date, if sufficient cause exists.
Proposed order: The debtor is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Reasons for denial:
Motion and opposition. The crux of AOK's motion is that cause exists under 11 USC 1112(b)(4) to convert or dismiss this case, and alternatively under 11 USC 1104, to appoint a chapter 11 trustee based on the debtor's alleged "gross mismanagement of the estate" and his "unauthorized use of cash collateral" that allegedly was "substantially harmful to 1 or more creditors[.]" 11 USC 1112(b)(4)(B) & (D). (In its reply (dkt. 65), AOK raises a number of additional issues allegedly supporting such relief.)
On the one hand this Court is somewhat concerned about (A) the debtor's (apparently inadvertent) use of cash collateral without authorization and (slight) delay in seeking such authorization once he was alerted to the assignment of rents issue (see dkt. 39), (B) his filing of this case in the wrong division of this district (see dkt. 19, 21), (C) his refusal to communicate in writing with AOK's counsel except in limited ways, (D) some vagueness regarding the assets and liabilities of the bankruptcy estate, (E) the prior bankruptcies affecting the property on which AOK has a lien, and (F) AOK's
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other allegations. Nevertheless, this Court is not persuaded based on the current record that there has been anything remotely approaching "gross" mismanagement of this estate or that the duration and nature of the use of cash collateral caused any "substantial" harm (if there was any harm at all) to any creditors, including AOK.
There is no evidence that the cash collateral was used for anything other than legitimate purposes. One such use has been paying liens, including tendering payments to AOK at an interest rate that is prima facie within a reasonable range for adequate protection of AOK's interest (and AOK has not rebutted that prima facie showing). Another use of cash collateral is to maintain the subject property (see dkt. 40, budget at pp. 4-6). AOK has not identified any harm at all, let alone "substantial" harm, from this use of cash collateral.
AOK's reply. AOK raises a number of new issues in its reply. That is procedurally improper and should be disregarded. See LBR 9013-1 (g)(1).
Alternatively and additionally, these new issues are not sufficient to warrant conversion, dismissal, or appointment of a chapter 11 trustee. It is true that, in general, a debtor has a fiduciary obligation to make disclosures, conduct investigations, and take actions regarding liabilities and assets, including such matters as claims objections and potential avoidance actions. If this bankruptcy estate turns out to be insolvent, and if the other facts and circumstances warrant, then the debtor might have to consider recovering the funds that were used to pay for his son's legal fees, and in any event he may have to sort out his interests in certain real property and in the law firm with his wife. But at this early stage AOK has not established that the debtor is shirking any such duties at all.
The debtor has represented that he anticipates a 100% payment to creditors, and he is contemplating a sale or refinance of at least one property, all of which makes it likely that any pursuit of avoidance actions would be premature and possibly a waste of time and resources. AOK's secured claim appears to be adequately protected (as noted above).
Of course, AOK is not required to accept the debtor's assertions at face value, it can elect to do its own due diligence and otherwise protect its interests, and presumably (although this issue has not been briefed) it may be entitled to reimbursement under the loan documents and applicable law in some dollar amount for a reasonable expenditure of attorney fees in pursuit of
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those things. But at this early stage of this case AOK has not come close to showing any substantial basis for the extreme remedies of conversion, dismissal, or appointment of a chapter 11 trustee.
Turning to another example, it is true that the California ethical rules provide that "[w]hile representing a client" a member of the bar shall not communicate with a party whom the member "knows" to be represented by another lawyer in the matter (without that lawyer's consent). See Reply (dkt. 65) p.8:10-14 (quoting Rule 2-100). AOK has not cited legal authority that the debtor, representing himself, is "representing a client" within the meaning of the rule. In addition, the debtor has denied having the requisite knowledge of the representation, and AOK has not presented any contrary evidence.
Moreover, supposing for the sake of discussion that AOK could show an ethical violation, it has not cited any authority that this would be sufficient for conversion, dismissal, or appointment of a chapter 11 trustee. This Court does not condone the alleged nature and tone of the communications (see Nelson Decl., dkt. 65, at PDF pp. 11-12), but if those were proven and amounted to actual ethical violations there would be separate remedies that would be more closely tailored to any actual wrongdoing, as opposed to sweeping remedies such as dismissal that may harm all creditors (and that might unduly punish even a debtor who has violated an ethical rule).
The remaining issues raised in AOK's reply appear to be most appropriately resolved through other means, such as a claim objection, consideration of a draft disclosure statement and plan, or the usual process of oversight by the Office of the United States Trustee ("UST"). For example, having reviewed the record in this case (including the transcript from the hearing on 4/12/16), it does not appear that this Court ordered the debtor to file an amended bankruptcy Schedule I, contrary to AOK's assertions in its reply. It is true that the UST and the debtor discussed possible amendments to the bankruptcy schedules at a prior hearing, but this Court left that in the first instance to the discretion of the debtor (under the eye of the UST) and any purported lack of accuracy will only be appropriate for this Court to address if later developments show that the debtor abused that discretion.
Debtor's supplemental opposition (dkt.68). The debtor's supplemental opposition is unauthorized and therefore, like the new arguments in the reply, need not be addressed. In addition and alternatively, this Court need not consider the factual allegations in that document (largly concerning the alleged ethical violation) because this Court is not persuaded
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by the reply in any event (for the reasons set forth above).
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement*: file by 9/5/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/17/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/12/16:
Appearances required by the debtor in person and any counsel for the debtor.
Current issues.
Status report. This Court has reviewed the debtor's timely filed status report (dkt. 47).
Regarding the debtor's request to file an explanation of the facts that gave rise to this case under seal, this Court requests that the U.S. Trustee state whether it would oppose such request and whether a written motion should be required.
In addition, the debtor should address what is meant by stating, with respect to possible sale procedures (dkt. 47, p.5:25-27), "This depends on how Court views New Orleans property."
Employment of a real estate professional. When does this debtor
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anticipate filing a motion to employ a real estate professional to sell the one New Orleans property that he contemplates selling?
Cash collateral. This Court has issued a separate tentative ruling addressing the debtor's proposed use of cash collateral (see calendar number 2, 4/12/16 at 1:00 p.m.).
Monthly Operating Report ("MOR") (dkt. 53). The debtor refers to a postpetition settlement. Will that need to be subject to a motion under Rule 9019?
Business income and expenses. The debtor's amended bankruptcy Schedules I&J (dkt. 45) fail to provide a breakdown of gross income, expenses, and net income for his business despite the instructions to do so on line 8a of Schedule I. The tentative ruling is to set a deadline of 4/19/16 to file an amended Schedule I that provides a detailed breakdown.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/5/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 4/26/16 at 2:00 p.m. (to be heard concurrently with the AOK Brothers, LLC motion to dismiss). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
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8/15/17, 11/14/17
Docket 6
Tentative Ruling for 2/13/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference. The tentative ruling is to set a continued status conference for 7/10/18 at 1:00 p.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 11/14/17:
Continue to 2/13/18 at 1:00 p.m. in view of the debtor's post-confirmation status report (dkt. 142). Appearances are not required on 11/14/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 8/15/17:
Appearances required. The debtor's counsel should be prepared to address
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the issues set forth below.
Proposed order: If this court is persuaded to adopt this tentative ruling, then counsel for the debtor is directed to serve and lodge proposed orders (a) approving the disclosure statement (dkt. 101) on a final basis and (b) confirming the plan (dkt. 102), all as amended by the stipulation with class 2A (dkt. 127, 128). Those preposed orders must be lodged via LOU within 7 days after the hearing date.
Ballot Summary. The debtor's ballot summary (dkt. 131) appears to be inaccurate and internally inconsistent. Although the ballots and stipulation attached to the ballot summary show acceptance by 100% in both dollar amount and number of the claims actually voted or deemed to have been voted in classes 2A, 2B and 4A, and no vote by Class 2C, the ballot summary makes assertions that are not consistent with those ballots, namely:
Cramdown: The ballot summary asserts that the debtor is not requesting cramdown (dkt. 131, item 3), even though the lack of an affirmative vote in class 2C means that the debtor does not satisfy 11 U.S.C. 1129(a)(8) and therefore must seek cramdown under 11 U.S.C. 1129(b);
Accepting classes: The ballot summary asserts that only class 4A has voted to accept the plan (dkt. 131, item 6), even though classes 2A and 2B have also accepted the plan; and
Page 2 of the Ballot Summary: The chart on page 2 of the ballot summary (dkt. 131, p.2, top line of chart) fails to show that Class 2A has accepted the plan by 100% in number of claims deemed to have been voted (not just 100% in amount). In addition, it would have been helpful if the ballot summary's "Comments" following that chart had explained that (i) Portfolio Recovery Associates is Class 2C (even though it is listed as LA County Tax Collector in the Plan), (ii) U.S. Bank is Class 2A (even though it is listed as Wells Fargo in the Plan), and (iii) Class 2A is deemed to have voted in favor of the plan under its court-approved stipulation, even though it did not actually cast a ballot. (If any of the foregoing is incorret then counsel for the debtor must correct those issues at the hearing.)
Status report
The debtor's status report (dkt. 130) misleadingly asserts that this court's order (dkt. 106) previously approved the disclosure statement (dkt.
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, whereas in fact this court only granted preliminary approval for purposes of this combined hearing on whether to approve the disclosure statement (dkt. 101) and confirm the plan (dkt. 102).
Confirmation. Notwithstanding the foregoing, it appears that the debtor's disclosure statement (dkt. 101) should be approved, and that the chapter 11 plan (dkt. 102), as amended by the debtor's stipulation with the holder of the class 2A claim (dkt. 127, 128), has met the requirements for confirmation under 11 U.S.C. 1129(a) & (b).
Correction. This court notes that the tentative ruling for 6/20/17 (reproduced below) was in error in asserting that "[at] the status conference on 5/23/17 this court set a deadline of 6/6/17 to file an amended plan and disclosure statement." In fact, this court was persuaded at that status conference not to impose that deadline.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 8/8/17 at 1:00 p.m. (without the need for any written status report), but impose sanctions of $200 on counsel for the debtor, for the reasons set forth below. Appearances are not required on 6/20/17.
At the status conference on 5/23/17 this court set a deadline of 6/6/17 to file an amended plan and disclosure statement. On 6/15/17, after this court had already prepared a tentative ruling for this status conference, counsel for the debtor filed a stipulation (dkt. 117) and lodged a proposed order for yet another continuance of the confirmation hearing. At no point did counsel telephone chambers to suggest that counsel expected or was attempting to arrange for such a continuance. Moreover, as set forth in the tentative rulings reproduced below, this case has a long history of missed deadlines, last minute filings, and deficient documents.
This court recognizes that to a large extent counsel cannot control delays by a debtor and debtor in possession, and not infrequently a debtor is simply incapable of meeting all of the debtor's obligations. Nevertheless, this
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court has noted that counsel of record in this case has a pattern, in this and other cases (e.g., In re Barragan, 2:15-bk-29156-NB), of filing late and inadequate documents, and that pattern is not matched by the vast majority of other counsel who appear before this court. All of that strongly suggests that counsel bears some responsibility for those deficiencies, and that imposes substantial burdens on this court, the U.S. Trustee, and any other parties in interest who may be monitoring or involved in such bankruptcy cases. The tentative ruling is that this warrants sanctions under this court's inherent powers and 11 U.S.C. 105. Counsel is also cautioned that this court anticipates issuing similar or increased sanctions if this pattern continues in other cases in future.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/23/17:
Appearances required by counsel for the debtor, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The ballot summary was due 5/16/17 but was not filed until 5/22/17 at 4:12 p.m. In addition, it is internally inconsistent. What remedies are appropriate?
The plan (dkt. 102) has not been accepted by any class. This is the debtor's second bankruptcy case, and it has been pending for over a year. The debtor's lack of progress for that long a period of time suggests a willful delay. Should this court dismiss or convert this case? Should this court impose a bar against being a debtor in bankruptcy for the third time in a row?
Deadlines/dates. This case was filed on 4/20/16. If this case is not dismissed or converted, the tentative ruling is to hold a continued status conference on 6/20/17 at 1:00 p.m. with a deadline of 6/6/17 to file (but NOT serve) yet another amended plan and disclosure statement.
If you do not appear, and the matter is not adequately resolved by consent,
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then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/23/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 4/11/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
UST compliance and adequate protection payments. What is the status?
Plan (dkt. 101) and Disclosure Statement (dkt. 102). 4/14/17 deadline to lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: See above.
Continued status conference: 5/23/17 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/28/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
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U.S. Trustee notice of non-compliance. Has the debtor cured the
reporting delinquency noted by the U.S. Trustee regarding lack of insurance (dkt. 94)?
Adequate protection payments. At the hearing on 1/10/17 counsel for the debtor assured this court that the debtor had cured the postpetition delinquency in adequate protection payments. But the monthly operating report for January 2017 (dkt. 95, filed 2/7/17, at p.4) continues to list 4 missed payments for a total of $6,972 delinquency. What was the basis for counsel's misrepresentation to this court? Should this court require counsel and the debtor to testify on that issue, and on the prospects for future income, before this court can find that the plan is feasible (11 U.S.C. 1129(a)(11))? Should this misrepresentation have any other consequences?
Plan (dkt. 82) and Disclosure Statement (dkt. 81). The debtor's ballot summary was due to be filed no later than 2/21/17 (dkt. 89). Instead the debtor's counsel has filed a declaration (dkt. 96) asserting that a ballot in favor of the plan has been received by class "6b," even though no such class is listed in the plan (see dkt. 82, Ex.A), and requesting more time to receive ballots from classes 2a and 2b, even though the deadline for ballots has passed. The parties should be prepared to address how best to proceed in these circumstances.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement (dkt. 82, 81): See above.
Continued status conference: 4/11/17 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/28/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances
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are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Payments to secured creditor Wells Fargo. The debtor's November 2016 MOR reflects that the debtor has not made 4 monthly payments to secured creditor Wells Fargo. See dkt. 84, PDF p. 7. Is that accurate, or did the debtor intend to state that those payments were made?
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement (dkt. 82, 81): The tentative ruling is to set the following deadlines: 1/17/17 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; and 2/28/17 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 2/28/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/8/16:
Appearances required by counsel for the debtor, but telephonic appearances
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are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Amended Chapter 11 Plan and Disclosure Statement (dkt. 74, 75). There are issues with these documents which this Bankruptcy Court will review orally at the hearing.
Monthly operating reports. The debtor's court approved budget (dkt. 19) and the budget attached to her amended chapter 11 disclosure statement (dkt. 74, PDF p. 13) show various typical monthly expenses such as transportation costs, utilities, and food. The expenses included in her budgets submitted to this court are either not reflected in her MORs for August and September 2016 (dkt. 65 and 73, respectively) or are reflected, but in much smaller amounts than budgeted. Is the debtor reporting all of her monthly expenses in her MORs? If not, why not?
Additionally, the MORs appear to reflect that the debtor is receiving less than her budgeted monthly income ($1,800/mo.) from her job as a real estate professional. In August 2016, the debtor reported receipts of $970.01; in September 2016, receipts of $1,000.
Based on the reporting in the debtor's two most recent MORs, this court is concerned that the debtor may not have sufficient disposable income with which to fund her proposed chapter 11 plan.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: Deadline of 12/6/16 to file (but NOT serve) an amended draft plan and disclosure statement if sufficient issues have been resolved to finalize those draft documents (see above).
Continued status conference: 1/10/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 9/13/16:
Appearances required by counsel for the debtor, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Chapter 11 Plan and Disclosure Statement (dkt. 59, 58). There are numerous issues with these documents, which this Bankruptcy Court will review orally at the hearing.
Orders on budget and cash collateral motions. On July 19, 2016, this court held continued hearings on the debtor's motion for use of cash collateral (dkt. 18) and budget motion (dkt. 19). The motions were granted on a final basis, and the court's adopted tentative ruling directed the debtor to lodge proposed orders on those motions within seven days of the hearing date. This court has reviewed the case docket and its pending lodged orders, and it appears no such orders have been lodged.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: Deadline of 10/11/16 to file (but NOT serve) an amended draft plan and disclosure statement if sufficient issues have been resolved to finalize those draft documents (see above).
Continued status conference: 11/8/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/19/16:
Appearances are not required on 7/19/16.
Current issues.
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Cash collateral motion (dkt. 18). Grant on a final basis, on the
same terms set forth in this court's order granting interim use of cash collateral (dkt. 37).
Budget motion (dkt. 19). Grant on a final basis.
The debtor must lodge proposed orders on each of the foregoing motions within seven days.
Deadlines/dates. This case was filed on 4/20/16
Bar date: Bar date: 7/29/16 (timely served, dkt. 39).
Plan/Disclosure Statement*: file by 8/19/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 9/13/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/31/16:
Appearances required by counsel for the debtor and by the debtor(s) themselves
Current issues. This Court has reviewed the debtor's status report (dkt. 23).
Prior failed case. The debtor's prior case (no. 2:14-bk-14065-NB) was a chapter 13 case that was dismissed because of plan infeasibility due to the objections by Wells Fargo, and claims by the IRS, FTB, and L.A. County
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Tax Collector.
Debtor's real property
Inconsistent rental income amount. This Court notes that the debtor's amended schedule G reflects a monthly rental of $2,200 (dkt. 13, p.10), which was originally listed as $1,500 per month (dkt. 1, p.36). However, the debtor's original schedule I originally listed the debtor's net income from rental property as $2,400 (dkt. 1, p.39). The debtor's amended schedule I now lists net income from rental property as $2,200 (dkt. 13, p.12). Although the rental income now appears to be consistent at $2,200, and schedule G reflects the same lessee, Smark Lyles, is this the correct amount?
Schedule I. Part 8.a. requires that the debtor attach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income.
Motion to Value. The debtor's status report indicates that the debtor intends to file a motion to value the real property. When does the debtor anticipate filing the motion to value?
UST compliance. The United States Trustee has filed a motion to dismiss or convert (dkt. 24). Although the matter has been set for hearing on 6/21/16, the debtor should be prepared to address more generally, why this case in chapter 11 instead of chapter 13. It appears that the debtor is within the debt limits for chapter 13, and chapter 11 typically is far more expensive, so it seems doubtful that the debtor needs or can afford a chapter 11 case.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/19/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time). This Court is aware that the debtor has requested a much later deadline (dkt. 23, p.4) but this Court is not aware of any reason why so much time is needed. The debtor should be negotiating with secured creditors and other key constituencies already.
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Continued status conference: 7/19/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Glynder Lucas Striggs Represented By Onyinye N Anyama
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fr. 1/10/17, 1/17/17, 02/28/17, 4/11/17, 5/23/17, 7/11/17, 8/15/17, 9/12/17, 10/3/17 , 12/5/17
Docket 5
Tentative Ruling for 2/13/18:
Continue to 5/1/18 at 1:00 p.m. in view of the debtor's post-confirmation status report (dkt. 107). Brief status report due 4/17/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
n/a
Deadlines/dates. This case was filed on 11/17/16.
Bar date: 3/15/17 (timely served, dkt. 24).
Amended Plan/Disclosure Statement (dkt. 85, 86)*: Approve the disclosure statement, and confirm the plan under 11 U.S.C. 1129(b) because there is an accepting impaired class (Class
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4A, see ballot summary, dkt. 100) and the plan is fair and
equitable and does not discriminate unfairly within the meaning of that statute.
Post-Confirmation status conference: 2/13/18 at 1:00 p.m., brief status conference due 1/30/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Background. This Status Conference was continued to 9/12/17 at the hearing on 8/15/17, and then further continued by order of this court (dkt. 69) to this 10/3/17 hearing.
Plan/Disclosure Statement (dkt. 77, 76). According to Exhibit A to the Plan, Class 2B is unimpaired, but that same exhibit does not show any payments at all to this class, and there is no Endnote stating that the collateral is to be abandoned to the creditor, so how is it unimpaired? Did the debtor intend to pay it in full on the Effective Date (or some other treatment)?
U.S. Trustee's objection (dkt. 82). The debtor will need to correct the math errors noted in this objection, and show that, after those corrections, the projections still would show feasibility.
Deadlines/dates. This case was filed on 11/17/16.
Bar date: 3/15/17 (timely served, dkt. 24).
Plan/Disclosure Statement (dkt. 77, 76)*: 10/10/17 deadline to file
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(NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting
package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 12/5/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/15/17:
Continue to 9/12/17 at 1:00 p.m. to provide this court and the U.S. Trustee time to review the debtor's anticipated, late-filed amended plan and disclosure statement. Appearances are not required on 8/15/17.
This court has reviewed the debtor's ex parte application to extend the 8/1/17 deadline to file the amended plan and disclosure statement (dkt. 61), filed after the deadline expired. The debtor's counsel is advised that in the future, such applications should be filed prior to the expiration of the subject deadline (or if that is not possible then an explanation should be included), and counsel should lodge a proposed order on the application.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 7/11/17:
Continue to 8/15/17 at 1:00 p.m., for the reasons set forth in the debtor's status report (dkt. 54), with a deadline of 7/7/17 to file (but NOT serve, except on the U.S. Trustee) amended versions of a proposed disclosure statement and a proposed plan. Appearances are not required on 7/11/17.
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/23/17:
Appearances are not required.
Current issues. This court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 11/17/16.
Bar date: 3/15/17 (timely served, dkt. 24).
Plan/Disclosure Statement*: file by 6/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 7/11/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/11/17:
Appearances are not required.
Current issues. This court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 11/17/16.
Bar date: 3/15/17 (timely served, dkt. 24).
Plan/Disclosure Statement*: file by 6/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/23/17 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/28/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
U.S. Trustee motion to dismiss (dkt.13). The parties should be prepared to address whether the debtor is in compliance. See Opp. (dkt. 17).
Bar date confusion (dkt. 24, 26). The debtor properly served this court's order setting a bar date (dkt. 24), but then improperly served a notice of bar date with blank spaces (dkt. 26, at para. 3.b.). The risk of such erroneous notices is exactly why Judge Bason requires service of the order itself instead of a notice. In future, counsel should be careful not to serve any such notice in cases before Judge Bason.
Deadlines/dates. This case was filed on 11/17/16.
Bar date: 3/15/17 (timely served, dkt. 24).
Plan/Disclosure Statement*: file by 6/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 4/11/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 1/17/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
U.S. Trustee motion to dismiss (dkt.13). The parties should be prepared to address whether the debtor is in compliance. See Opp. (dkt. 17).
Monthly Operating Reports (MORs, dkt. 20, 21). The debtor appears to be losing money (e.g., net losses in December of $7,115.70). At the status conference on 1/10/17 counsel for the debtor attributed this to one- time December/holiday issues. What is the debtor's forecast for January, 2017 and beyond?
Other prior issues. At the status conference on 1/10/17 this court excused the debtor from filing a payroll motion, and counsel for the debtor adequately addressed this court's other concerns orally, but presumably the corrected data should be reflected in an amended bankruptcy schedule G etc.
- when will the debtor file such amendment(s)?
Deadlines/dates. This case was filed on 11/17/16.
Bar date: 3/15/17 (dkt. 22, to be served no later than 1/17/17).
Plan/Disclosure Statement*: file by 6/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/28/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
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Current issues.
Payroll. The debtor concedes in its status conference report that it has paid its employees' pre-petition wages without court authorization. See dkt. 16, p. 6:20-27. When does the debtor anticipate filing a payroll motion? Also, why does the debtor's payroll account for November 2016 reflect a $0 balance and no disbursements? See dkt. 15, PDF p. 16.
November 2016 monthly operating report ("MOR").
General DIP account. The debtor's DIP account ending in 4231 reflects an ending balance of ($1,153.48), and it appears the debtor incurred multiple overdraft charges. This court is concerned about the debtor's ability to operate, let alone fund a chapter 11 plan. Has the debtor established a positive bank balance in its general DIP account since November 2016?
Payments on executory contracts. Despite listing a lease in its Schedule G (dkt. 1, p. 22), the debtor lists nothing in its November MOR reflecting monthly lease payments (dkt. 15, PDF p. 23). Is the debtor current on its payments to its lessors?
Tax liabilities, accounts receivable, insurance. The debtor has reported no taxes owed for November 2016 for payroll or for sales, no accounts receivable and no insurance policies. See dkt. 15, PDF pp. 23-24. How is that possible?
Insiders. In its profit and loss statement set forth in the November MOR, the debtor lists current expenses of $1,000/month for insider compensation, yet the debtor has left the schedule of compensation paid to insiders blank. See dkt. 15, PDF pp. 25-26. Why has the debtor failed to disclose the name(s) of its insider(s) and the compensation they were paid? Why has the debtor failed to comply with local procedures for insider compensation?
Application to employ general counsel. The debtor stated in its status conference report that an application to employ its bankruptcy counsel would be filed on or before 12/29/16. See dkt. 16, p. 5, para. 6. This court has reviewed the case docket, and it appears no such application has been filed. Why not?
Schedule G. In its status conference report, the debtor lists two leases it intends to assume: one with Stanford Mart LP for its commercial property space, and one with Merit Group, LLC for its warehouse space. See
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dkt. 16, p. 6, para. 8. The debtor's Schedule G lists only the lease with Stanford Mart LP. See dkt. 1, p. 22. The debtor must amend its Schedule G to disclose all executory contracts and unexpired leases.
Deadlines/dates. This case was filed on 11/17/16.
Bar date: 3/15/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 6/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 1/17/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eleganzarella, Inc Represented By
Anthony Obehi Egbase Crystle J Lindsey Kevin Tang
Adaure C Egu Edith Walters Clarissa D Cu
Amelia Puertas-Samara
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Docket 59
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference (calendar no. 8, 2/13/18 at 1:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 3, 1/23/18 at 1:00 p.m.).
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
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Docket 1
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that he lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18. That deadline has passed and, as of the preparation of this tentative ruling, no such papers have been filed.
Exit strategy. What is the debtor's strategy to exit from bankruptcy? Should this case be dismissed?
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 3/20/18 at 1:00 p.m. (if this case is not dismissed). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue this status conference and the combined hearing on final approval of the disclosure statement (dkt. 60) and confirmation of the plan (dkt. 59) to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtor's failure to file the ballot summary with respect to the plan, which was due on 1/16/18 (see Order, dkt. 61) and (b) the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the federal government.
At the continued hearing the debtor should be prepared to testify, or make an offer of proof, as to feasibility.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Income calculation. Exhibit C, Attachment 1, line 7, for income from "operations of business" requires the debtor to "attach detailed statement." No such statement appears to be provided.
Disputed claims and other prior issues appear to be adequately addressed. The revised Exhibit F (dkt. 58) lists the 16th Street Group twice: once for the undisputed portion and once for the disputed portion - if the dollar amount of the disputed portion of the claim is sufficient then this appears to fully address this court's concerns expressed in the tentative ruling
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for 11/7/17. All of this court's other concerns appear to have been fully addressed as well.
Feasibility. This court anticipates that the debtor may be required to testify, or make an offer of proof, as to feasibility at the combined hearing (set forth below) on final approval of the disclosure statement and confirmation of the plan.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: 12/15/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 2/27/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 54) and disclosure statement (dkt. 53)
Disputed claims. The plan contemplates non-payment to some disputed claims. Unless and until those claims are disallowed (or allowed),
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the debtor must establish a disputed claims reserve and pay into that reserve in order to confirm any plan.
General unsecured creditors. The plan includes a confusing mix of different listings of general unsecured creditors. Exhibit F starts with the total from the debtor's bankruptcy schedules and then reduces it by a dollar amount that appears to be random (there are no calculations to show how the debtor arrived at that reduction). Attached to Exhibit F is a copy of the debtor's bankruptcy schedules, but those are not manually marked up to show how the debtor arrived at the dollar amounts in Exhibit F.
Exhibit I lists not only general unsecured claims but also priority and secured claims, so it is not helpful to figure out how the debtor arrived at the dollar amount of reduction in Exhibit F.
Exhibit H item "(6)" lists anticipated/pending objections to claims, and provides what appear to be estimated dollar amounts, but there is no basis for such estimates and they are not tied to the reduction in total claims listed in Exhibit F.
It appears that the simpler solution would be (i) to use the "electronic option" in Exhibit F (starting at line 5) for general unsecured claims, instead of attaching the bankruptcy schedules, (ii) cut all unsecured claims from Exhibit I as redundant, and (iii) use a disputed claims reserve and/or obtain final orders disallowing or allowing claims and/or follow the proper procedures for claims estimation, if permissible (see 11 U.S.C. 502(c) and Rule 3018(a), Fed. R. Bankr. P.).
Tax claims. One tax claim has been withdrawn (dkt. 52). Is the tax claim listed in Exhibit A for "LACTTC" a different claim?
Pagination. The debtor's plan divides one-page exhibits onto two pages, which is somewhat confusing. The debtor may need to adjust the page margins to enable them to print on a single page.
Income calculation. Exhibit C, Attachment 1, lines 1 and 7, do not provide adequate disclosure of the debtor's income calculation. Line 1 is for "wages, salary, and commissions" but as an independent contractor the more appropriate line would appear to be line 7 for "operations of business," which requires the debtor to "attach detailed statement." In any event, the debtor cannot simply list net income without any disclosure as to the gross revenues, specific expenses, and calculation of that net income.
The debtor's failure to disclose sufficient information about revenues and expenses has been a recurring theme - see the tentative ruling for
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7/11/17 (reproduced below), item "(1)(a)" under the "Third" issue. Given this history, this court will require the debtor to file and serve on the U.S. Trustee, no later than the deadline set forth below for filing an amended plan and disclosure statement, a detailed declaration providing documentation as to the basis for each aspect of the income and expense projections (the debtor may incorporate Monthly Operating Reports by reference, but cannot rely only on those MORs - the debtor must provide additional support for his projections).
Double-counting of expenses. Exhibit C, Attachment 1, line 17, includes an adequate protection payment of $325.50/mo. (with a reference to "RFS Order Dkt No. 45"), but it appears that these adequate protection payments will be replaced by the payments in Class 1A of $383.28/mo. It appears that once the added $325.50/mo. is eliminated then the cash flow might be more feasible.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file "blacklined" versions by 11/21/17 (the spreadsheets probably will need to be manually blacklined) (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/12/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/12/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This court has no issues to raise sua sponte at this time.
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Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Appearances required by counsel for the debtor and by the debtor himself.
Current issues.
Budget motion (dkt. 21). This motion is not on for hearing, but in connection with this Status Conference the debtor should be prepared to address the following concerns.
First, the debtor lists $1,350/mo. in income derived from unemployment benefits, in addition to his $6,150/mo. in business income derived from his self-employment as an independent marketing consultant, a job at which he claims to have been employed for the past year. Dkt. 21, p.
8. How can the debtor obtain unemployment benefits when he is employed? How will the budget change when those benefits cease?
Second, the debtor lists net business income but has failed to provide a breakdown of gross receipts, ordinary and necessary business expenses, and calculation of the resulting monthly net income, as required by the instructions on bankruptcy Schedule "I" line 8a. See dkt. 21 at p. 8.
Third, the debtor asserts a 50% interest in a real estate business in Miami, Buena Vista Terminal, LLC. See dkt. 1, pp. 19, 51. What is the nature of that business? Does the debtor derive any income from that business?
Finally, the debtor reports that he has just $43.43 in monthly net income to contribute to a chapter 11 plan. But the debtor has two cars and a
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motorcyle and over $700/mo. in automobile payments (plus "transportation" costs). Is that reasonable? See In re Concoff (case no. 2:13-bk-37328-NB, dkt. 246).
Application to employ counsel (dkt. 24). Does the U.S. Trustee have any concerns about the proposed interim payment procedures and fee sharing arrangement between Ms. Ghanooni and Ms. Esmaili?
According to the retainer letter (dkt. 24, Ex. 3, para. 4) some of the retainer was to be paid by the debtor's mother, as a gift. But the application and the Rule 2014 disclosures by proposed counsel and by the debtor assert that there is no connection with any insider, and that all funds have come solely from the debtor. Which version of the facts is true? If any portion of the retainer has been paid by a third party, that raises special concerns (e.g., was the third party fully informed, in writing, that counsel represents the DIP not the third party, and might actually have to sue the third party if there were any potentially avoidable transfers? are there any such transfers or other potential conflicts?). See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D.
Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 9/22/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/15/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference, dkt. 8).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
2:00 PM
1/23/18
Docket 1
Tentative Ruling for 2/13/18:
Continue to 4/17/18 at 2:00 p.m. in view of the debtor's post-confirmation status report (dkt. 313). Brief status report due 4/3/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue to 2/13/18 at 2:00 p.m., in view of (a) the debtor's status report (dkt. 313) and (b) the inability of the Office of the United States Trustee to appear on 1/23/18 in view of the shutdown of much of the federal government. Note: Prior to 2/13/18 this court anticipates posting a tentative ruling for a further continuance to 4/17/18 at 2:00 p.m., unless a party in interest files a status report no later than 2/6/18 requesting to be heard on 2/13/18. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Continue to 11/7/17 at 2:00 p.m. to be heard concurrent with the fee applications. Appearances are not required on 10/17/17.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/12/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any outstanding disputes with landlords, or other issues that are appropriate for disposition at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
B&B Bachrach, LLC Represented By Brian L Davidoff
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
[Defendant, Phoenix Oil and Gas Inc. dismissed on 11/6/17] [Defendant, Tatyana Grukhina dismissed on 11/6/17] [Defendant, Charles Ross dismissed on 11/29/17] [Defendant, Tearlach Resources LTD dismissed on 11/29/17]
[Defendant, United Pacific Energy Operations and Consulting, Inc dismissed on 11/29/17]
Cont'd status Conference re: Complaint 1) Breach of Written Contract; 2) Breach of Implied Contract
and Fair Dealings; 3) Interfering with Economic Relationship; 4) Slander of Title; 5) Quiet Title;
6) Declaratory Relief
fr. 8/22/17, 11/14/17, 1/23/18
Docket 1
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 8, 1/23/18 at 2:00 p.m.).
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Tentative Ruling for 11/14/17:
Appearances required. The tentative ruling is to deny the motions for default judgments, without prejudice, for the reasons set forth below, and to set a continued status conference for 1/30/18 at 2:00 p.m.
On the one hand, there appears to be successful prosecution of this adversary proceeding because, according to the plaintiff's status report (adv. dkt. 92), all of the defendants have either agreed to the requested declaratory relief or have defaulted. On the other hand, there are some fundamental issues that appear to prevent this court from granting default judgments at this time.
Self-calendaring error. The motions for default judgments were only served on 10/27/17. See, e.g., Motion for Default Judgment Derek Wilshee (dkt. 83, 74) (collectively, the "Wilshee Default Motion"). That is insufficient time prior to the hearing, under the applicable rules, nor was there any cover notice of the hearing date and deadline for any opposition or response.
Jurisdictional issues.
Personal jurisdiction. Does the complaint adequately establish personal jurisdiction over each defendant? At least one defendant is alleged to be a resident of Australia (dkt. 1, para. 14), although the plaintiff has voluntarily dismissed claims against that defendant (dkt. 107). Are each of the defaulting defendants subject to personal jurisdiction?
Subject matter jurisdiction, and abstention. The complaint and motions for default judgment make somewhat vague assertions of other action(s) that were or are pending in other courts apparently involving the same subject matter, and involving at least preliminary injunctive relief if not other relief. Can this Bankruptcy Court assume jurisdiction over matters that are pending in other courts? Must or should this Bankruptcy Court abstain?
Allegations of wrongdoing. Where is the analysis tying each of the defaulting defendants to one or more of the specific acts of wrongdoing bringing them within the claims in the complaint? For example, the only allegation in the complaint regarding Mr. Wilshee (dkt. 1, para. 14) appears to be that he was at one time an officer of the debtor. How is that an act of wrongdoing?
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The Wilshee Default Motion seeks a default judgment against Mr.
Wilshee of $431,472,300.00 (dkt. 74, at PDF p.51 of 53). How is he responsible for such alleged damages? Does the complaint need to be amended to establish, as against one or more of the defaulting defendants, how they are alleged to be liable?
Calculation of damages. An exhibit to the plaintiff's motions for default judgments asserts that "Based on Department of Conservation Records [available on a website and/or verified by whom?], these leases [which leases? the ones that allegedly were supposed to be assigned but were not?] were producing 1730 barrels of Oil a day [when?]" and "[w]ith today's technology [how is today's technology better?], a conservative figure would be 3500 barrels a day [based on whose expert opinion?] that will be used as a figure for all the losses caused by Western States International [how about other defendants?]." Dkt. 83, Ex.A, at PDF p.17 of 53. The same exhibit shows a calculation of alleged damages based on "Approx Production" of "105,000" which is far more than 3500 barrels (perhaps using a 30-day presumptive month multiplied by 3500 barrels a day?), an "Average Oil Price [from what source?]," and a "Cost [to extract, market, refine, deliver, and sell the oil - or some other or different set of things? based on what expert's opinion?]." Based on the foregoing questions, and applying Rule 55(b)(2) (Fed. R. Civ. P.) (incorporated by Rule 7055, Fed. R. Bankr. P.), it appears that additional evidence and a "prove up" hearing will be needed to determine the amount of damages, if not other issues.
Alleged costs, attorney fees, and interest. The debtor/plaintiff asserts $1 million in costs (dkt. 74 at PDF p.51 of 53) - how is that possible? What are the components? Attorney fees are alleged to be $300,000 - this case has barely commenced, so how is that possible? Where are the daily time sheets and/or other support for this figure? Prejudgment interest is alleged to be at a 10% rate per year starting 1/1/11. What is the contractual or statutory basis for that interest rate and that commencement date? The purported damages were incurred month by month, so how can interest run from before those damages were incurred?
Declaratory relief. The plaintiff makes broad allegations about the rights under various contracts, or arising from breaches of those contracts or by
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operation of law. Where is the support for these allegations? The plaintiff cannot place the burden on this court to sort through numerous provisions of various contracts to piece together the plaintiff's theory. The plaintiff must provide specific, easy-to-follow analysis and evidence.
Conclusion. Because the motions for default judgments are both procedurally and substantively deficient in all of the ways set forth above, the tentative ruling is to deny them without prejudice.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. This court notes that the parties were directed to file a joint status report two weeks in advance of this hearing (dkt. 2), but have not done so. In addition, this court notes that the tentative ruling in the main case status conference (calendar no. 3, 8/22/17 at 2:00 p.m.) is to dismiss the main case, which normally would terminate this adversary proceeding.
Nevertheless, to preserve all rights in the event that this court were to be persuaded not to dismiss the main case, this court has reviewed the other filed documents and records in this adversary proceeding and issues the following tentative ruling.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not
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be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 6/19/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 1/12/18 Expert(s) - deadline for reports: 1/26/18
Expert(s) - discovery cutoff (if different from above): 2/9/18 Dispositive motions to be heard no later than: 3/2/18
Joint Status Report: 11/28/17
Continued status conference: 12/12/17 at 11:00 a.m. Trial deadlines to be determined at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
2:00 PM
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
David Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
DOES 1 through 10, inclusive Pro Se
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Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
California Division of Oil, Gas and Geothermal Resources (DOGGR) as Defendants
Docket 125
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
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Derek Wilshee Pro Se
Michael Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
1/23/18
Docket 1
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status Reports (main case dkt. 122; adv. no. 2:17-ap-01326-NB, dkt. 132). The debtor/plaintiff suggests that it will be filing a motion to approve a disclosure statement. Is that premature, given the following issues?
Motion to amend complaint (adv. dkt. 125). The parties should be prepared to address the issues raised in the motion and in the oppositions filed by the California Department of Conservation, Division of Oil and Gas, and Geothermal Resources ("DOGGR") (adv. dkt. 125, 130, 131).
In addition, the debtor/plaintiff should be prepared to address whether the proposed amended complaint cures the deficiencies in the original complaint, and whether any ruling on the motion to amend the complaint should be deferred until after default judgments are (or are not) obtained on the existing (original) complaint, for the reasons set forth in this Court's Memorialization Of Reasons For Denying Motions For Default Judgments (captioned for the adversary proceeding but erroneously filed in the main case as dkt. 118). See also Order denying prior motions for defaul judgments (adv. dkt. 117) and subsequent Motions for default judgments (adv. dkt. 133, 134, 135).
Deadlines/dates. This case was filed on 11/23/16.
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Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60,
103, 111, 121, 123); supplemental date of 1/26/18 (order served late, but the tentative ruling is to excuse that lateness, dkt. 107, 110).
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/20/18 at 2:00 p.m., status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue the status conferences in both the main case and the adversary proceeding (adv. no. 2:17-ap-01326-NB) to 2/13/18 at 2:00 p.m. with a status report due 2/6/18 (at which time other documents are also due as set forth below) for the reasons set forth below. Appearances are not required on 1/23/18.
Current issues
Reasons for continuance: (i) because of the problems noted below;
because of the debtor's untimely last-minute filing of status reports (the debtor is cautioned that continued untimely filings may result in sanctions);
because of the inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government, (iv) to be concurrent with the (improperly self-calendared) motion to amend the complaint, and (v) in view of the debtor's various status reports (main case dkt. 117, adv. dkt. 122, 127, 129).
Bar date. The debtor's proofs of service of the bar date order are missing exhibits and incomprehensible (see dkt. 110, 111). The debtor is directed to file, no later than 2/6/18, either a corrected proof of service or an
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application (supported by a declaration) to set yet another supplemental bar date - whichever is appropriate.
Status of existing complaint in adversary proceeding. On 11/20/17 this court issued an order (adv. dkt. 117) denying the plaintiff/debtor's motions for default judgments, without prejudice. The debtor now seeks to amend the complaint (adv. dkt. 125). All of these things moot the motions for default judgments so the hearings on those motions have been vacated.
In addition, the tentative ruling is to memorialize this court's reasons for denying the motions for default judgments by filing on the docket a copy of this court's adopted tentative ruling for the 11/14/17 hearings on those motions (reproduced within the tentative ruling for calendar no. 9. 1/23/18 at 2:00 p.m.).
Motion to amend complaint (adv. dkt. 125). This motion was self- calendared for 2:00 p.m. (a time that cannot be used for self-calendaring) on 2/13/18. Nevertheless, the tentative ruling is to permit that motion to proceed at that time.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60); supplemental date of 1/26/18, to be served no later than 11/15/17 (per Order, dkt. 107) but proofs of service are incomprehensible (dkt. 110, 111) - see above under "current issues".
Plan/Disclosure Statement*: TBD.
Continued status conference: as set forth above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the following issues.
Current issues. The debtor has filed a second (very belated) proof of service (dkt. 103) of this court's order (dkt. 56) setting a bar date. Under that order the bar date was set as 7/10/17 and service was required no later than 5/8/17. What does the debtor's belated service do except cause confusion? Does the debtor require a new bar date for previously unknown creditors?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60; but see above under "current issues").
Plan/Disclosure Statement*: TBD.
Continued status conference: 1/30/18 at 2:00 p.m., status report due 1/16/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
The tentative ruling is to dismiss this case with a 180 day bar for willful failure to appear in proper prosecution, as set forth below. See 11 U.S.C. 109(g)(1). Appearances are not required.
Reasons: This case was filed on 11/23/16. The debtor's assets consist of
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disputed rights in hydrocarbon leases. See Status Report, dkt. 81. Realizing any value from those rights apparently depends on retaining special counsel who will diligently prosecute the debtor's claims. Despite numerous opportunities, the debtor has failed to satisfy the prerequisites for retention of special counsel.
Inadequate declarations about "connections"
At the hearing on 7/11/17 this court extensively reviewed the evidence that would be required before this court could approve the application to employ the latest proposed special counsel, Mr. Montes. That included a requirement of detailed declarations from Mr. and Mrs. Hoats regarding any transfers of any property (including intangible property) involving the debtor and any of them, as well as any other "connections" (as that term is used in Rule 2014, Fed. R. Bankr. P.) to the debtor and any other party in interest.
This court recognizes that Mr. and Mrs. Hoats are not the professionals whose employment is being sought. Nevertheless, given their very close ties to the debtor, and their failure to disclose connections to the prior proposed special counsel that raised questions about conflicts of interest, this court orally ordered the debtor to provide their declarations at the hearing on 5/2/17. That order has been ignored.
Knudsen factors
This court also directed Mr. Montes to file a declaration addressing the factors that this court must consider in assessing his request to be paid more frequently than once every 120 days. See In re Knudsen, 84 B.R. 668, 672- 73 (9th Cir. BAP 1988). Mr. Montes has filed such a declaration (dkt. 82) and has adequately summarized the factors (id., p.3:15-23) but he has not adequately addressed the third factor, which he summarizes as: "any funds paid but later disapproved by the court can be recovered from the professional" in one or more of the ways listed in Knudsen. (Emphasis added.) Those ways are:
[a. Holdback] retainer payments are for only a percentage of the amount billed so that the likelihood or necessity of repayment is minimal [Mr. Montes suggests a 10% holdback, which has not been shown to be adequate - the typical amount is 20%, and that typically applies only to well established firms whose ability to repay funds is reinforced by the firm's longevity and reputation or similar considerations];
[b. Bond] counsel can post a bond covering any possible
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reassessment [Mr. Montes has not addressed this factor];
[c. Financial ability to repay] counsel's financial position makes it certain that any reassessment can be repaid [Mr. Montes has not addressed this factor]; [and/or]
[d. Hold funds in trust account] funds paid prior to allowance are held in a trust account until a final or interim fee allowance is made [Mr. Montes has only offered to place the 10% proposed holdback in a trust account]. [Knudsen, 84 B.R. 668, at 672]
The debtor appears to cite the wrong statutory authority
The debtor's application to employ Mr. Montes (dkt. 65) requests that his employment be approved under subsection "(e)" of 11 U.S.C. 327. But that subsection only applies by its terms to an attorney who "has represented the debtor" (i.e., prepetition counsel whose employment is to continue postpetition). Id. (emphasis added).
That is not the end of the analysis, because it has been held that special counsel can be employed even when such counsel has not represented the debtor prepetition. See In re Fondiller, 15 B.R. 890, 892 (9th Cir. BAP 1981) (emphasis added), appeal dism., 707 F.2d 441 (9th Cir.
1983). Although Fondiller has been interpreted as authorizing employment under subsection (e) (see, e.g., Covenant Fin. Group of Am., Inc., 243 B.R. 450, 455 & n. 8 (Bankr. N.D. Ala. 1999)), the precise holding of Fondiller appears to be that special counsel can be employed under subsection "(a)" of Section 327 because any "omission" in subsection "(e)" does not limit the general authority in subsection "(a)." See Fondiller, 15 B.R. at 891-92 (interpreting § 327(a) by comparison with §§ 327(c) and (e)).
True, the precise statutory authority appears to make little if any practical difference, because Fondiller held that when counsel is only employed to perform limited services, then an interest "adverse to the estate" means "an adverse interest relating to the services which are to be performed by that attorney," which appears to mean that the inquiry for proposed special counsel under subsection "(a)" is the same as under subsection "(e)." Fondiller, 15 B.R. at 892 (emphasis added). Mr. Montes' declaration (included in dkt. 65) appears to meet this test because he states that he has no adverse interest.
Nevertheless, as stated above this court has required additional evidence from Mr. and Mrs. Hoats and that evidence has not been provided. In addition, because the debtor has sought authority under subsection "(e)" instead of "(a)" it appears not have met the technical requirements for
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employment of Mr. Montes.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 7/11/17:
Appearances required.
Current issues
Employment of special counsel. Deny the application to employ the Law Offices of M. Brian McMahon (dkt. 46) because he no longer intends to pursue employment. See dkt. 73, para. 3. Deny the application to emply the Law Offices of Mike Montes, Jr. (dkt. 65) due to the failure to address the issues raised by this court in the tentative ruling for 5/2/17 (reproduced below) (without reaching the issues raised by the U.S. Trustee's objection, dkt. 72, and the debtor's reply, dkt. 74). The U.S. Trustee is directed to lodge proposed orders denying each application within seven days after this hearing date.
Lack of progress. Should this case be dismissed for lack of prosecution?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/22/17 at 2:00 p.m., status report due 8/15/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Continue to 7/11/17 at 1:00 p.m. to allow the debtor time to prosecute an
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employment application regarding Mr. Motes (see debtor's case status report, dkt. 62). Appearances are not required on 6/13/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/2/17:
Appearances required. There is no tentative ruling, but the debtor's proposed attorney, Brian McMahon Esq., should be prepared to address the concerns set forth in the U.S. Trustee's objection (dkt. 49) and the other issues set forth below.
Current issues.
Proposed special counsel.
Background. On 4/5/17 the debtor filed an application for authority to employ the law offices of Mr. McMahon as special counsel under 11 U.S.C. 327(e) (dkt. 47). On 4/12/17 the United States Trustee ("UST") filed an objection to the employment application, which expressed concerns about the payment arrangement proposed in the application (dkt. 49).
The debtor filed a statement of disinterestedness for Mr. McMahon (dkt.53), and a reply (dkt.55), stating that a third party, Ms. Lilian Hoats, will be paying the attorney fees for Mr. McMahon's representation. Ms. Hoats is the CEO of Inviron Technologies, Inc. ("Managing Member"), which is the debtor's managing member (dkt. 55, Ex.1, p.1, recital "b"). Attached to the reply (dkt. 55, Ex.1) is a written document that purports to be a waiver of conflicts (if any exist) among the debtor, Ms. Hoats, and the Managing Member (the "Hoats/Managing Member Conflict Waiver").
The Attorney-Client Retainer Agreement attached to the employment application (dkt. 46, Ex.1) provides that Mr. McMahon is representing not only the debtor but also its affiliates Riverwood Energy, LLC ("Energy Affiliate") and Riverwood Resources Ltd. ("Resources Affiliate"). This court is not aware of the precise organizational and contractual relationships among the debtor, Energy Affiliate, and Resources Affiliate, nor of any written document purporting to be a waiver of conflicts (if any exist) among them.
Statutory provisions and rules
Although special counsel does not have to be "distinterested"
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(compare 11 U.S.C. 327(a)), special counsel still must not "represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed." 11 U.S.C. 327(e) (emphasis added). Under Rule 2014 (Fed. R. Bankr. P.) both Mr. McMahon and the debtor were supposed to disclose all connections between Mr. McMahon and "the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee."
The disclosures have not been adequate. This court does not know enough about the underlying litigation and the organizational and contractual relationships among the various entities to assess whether there may be conflicts of interest between the debtor, on the one hand, and Ms. Hoats, Managing Member, Energy Affiliate, and/or Resource Affiliate.
A DIP's conflicts generally cannot be waived
Any purported conflict waiver probably cannot waive actual conflicts.
See, e.g., In re Perry, 194 B.R. 875, 880 (E.D.Cal.1996) (waiver of conflict by non-debtor parties was insufficient and "[i]nformed consent could not be obtained" because "the real parties in interest in this case are the creditors, and that is not a waivable conflict"); In re B.E.S. Concrete Products, Inc., 93 B.R. 228, 235 (Bankr. E.D. Cal. 1988).
But while actual conflicts of interest create a violation of 11 U.S.C. 327 which would require disqualification of the proposed professional, the mere existence of a potential conflict of interest does not require disqualification, and it is up to the court's discretion whether the purported conflict is sufficiently threatening to the estate to warrant disqualification. In re Wheatfield Business Park, LLC, 286 B.R. 412, 421 (Bankr. C.D. Cal. 2002).
Are proposed counsel and the debtor aware of any actual conflicts?
How about potential conflicts?
The purported conflict waiver is incomplete
The Hoats/Managing Member Conflict Waiver is not actually signed by Ms. Hoats in her individual capacity (she has only signed it on behalf of the debtor's Managing Member). In addition, as noted above, this court is not aware of any purported conflict waiver among the debtor and Operating Affiliate or Resources Affiliate.
There might be conflicts among the debtor and Ms. Hoats A third party who funds a retainer for the debtor (the "Funder")
generally has some pre-existing relationship with the debtor, and/or some
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motivation to providing the funding. Those things increase the likelihood that the Funder could be the recipient of an avoidable preference, or might have alter ego liability, or otherwise might have interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a third party is not outright prohibited, it is fraught with ethical concerns. At the hearing, counsel for the debtor and proposed special counsel should be prepared to address the following.
Terms. What are the precise agreements, understandings or expectations regarding the funds -- e.g., are the funds a loan, a gift, an investment, or something else?
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and that the sole attorney-client relationship and duty of loyalty is with the debtor, not the Funder? Who provided such advice: independent counsel? counsel for the debtor? the debtor's proposed special counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing? Ms. Hoats has signed the Hoats/Managing Member conflict waiver on behalf of the debtor: how can she, acting for the debtor, waive conflicts with herself?
Other considerations. Has proposed special counsel demonstrated or represented to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Lotus Prop's LP, 200 B.R. 388 (Bankr. C.D. Cal. 1996) (rejecting per se disqualification when fees are paid by third party); and compare In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990) (per se rule). See generally In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
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*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/4/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status report. This court's previous tentative ruling (reproduced below) directed the debtor to file a status report by 3/14/17. Why has no such status report been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/7/17:
Continue to 4/4/17 at 2:00 p.m., status report due 3/14/17. No appearances are required on 2/7/17.
(1) Current issues
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This case was filed on 11/23/16. The debtor's status report (dkt. 34)
states that the debtor intends to retain special counsel, and the monthly operating reports (dkt. 37, 38) appear to show no activity other than opening DIP bank accounts and paying associated fees. Although progress in this case has been slow, it does not appear efficient to hold a status conference at this time. If substantially more progress is not shown by the next status conference, this court may dismiss this case for failure to appear in proper prosecution. See 11 U.S.C. 109(g)(1), 349.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Substitution of attorney. On 12/23/16, the debtor filed a substitution of attorney (dkt. 22) reflecting that current proposed counsel is Giovanni Orantes, Esq. Why has no employment application been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 12/13/16:
Appearances required.
Current issues
Counsel for the debtor should be prepared to address why no status report has been filed (see dkt. 3); why the docket does not reflect that anything has been done in this case to date; and why this court should not convert or dismiss this case.
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor and by the debtor(s) themselves, pursuant to the order setting this status conference (dkt. 3).
Current issues.
First Day Motions. The debtor should be prepared to address the necessity of first day motions such as cash collateral, payroll, utilities, etc. To the extent that those motions are necessary, why have they not yet been filed?
Deadlines/dates. This case was filed on 11/23/16.
Bar date*: to be set at the continued status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 12/13/16 at 2:00 p.m., initial status
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report due 11/29/16.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
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Docket 8
Appearances required by the debtor. There is no tentative ruling, but the debtor should be prepared to address the issues raised by this court's order (dkt. 8) to show cause regarding inconsistent social security numbers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Winston M Toleran Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 36
Please see the tentative ruling for the status conference (calendar no. 8, at 2:00 p.m. on 2/13/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Docket 38
Please see the tentative ruling for the status conference (calendar no. 8, at 2:00 p.m. on 2/13/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Docket 1
Tentative Ruling for 2/13/18:
Appearances required.
Current issues.
The parties should be prepared to address (a) whether the Court should order mandatory mediation of the proposed settlement, proposed assignment of the lease, and related issues; (b) whether concurrently this Court should set deadlines such as a discovery cutoff or, conversely, whether this Court should temporarily issue a stay of some litigation; and (c) whether the parties would prefer that this Court provide some tentative rulings or preliminary thoughts on various issues, or if instead it would foster possible settlement or serve other beneficial goals for this Court not to do those things at this stage of the case.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
n/a
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 2/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: This court will discuss setting a deadline for the filing of a draft plan/disclosure statement at the status conference.
Continued status conference: 2/13/18 at 1:00 p.m., brief status report due 1/30/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Docket 119
Please see the tentative ruling for the status conference in the Sakurai case (calendar no. 12, on 2/13/18 at 2:00 p.m.).
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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fr. 1/23/18, 1/30/18
Docket 41
Please see the tentative ruling for the status conference in the Sakurai case (calendar no. 12, on 2/13/18 at 2:00 p.m.).
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt Nicholas W Gebelt Nicholas W Gebelt
Akemi Sakurai Represented By Nicholas W Gebelt Nicholas W Gebelt
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FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 48
Please see the tentative ruling for the status conference in the Sakurai case (calendar no. 12, on 2/13/18 at 2:00 p.m.).
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
2:00 PM
Docket 1
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
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Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
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Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
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Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
2:00 PM
Docket 118
Please see the tentative ruling for the status conference in the Checkmate
case (calendar no. 15, 2/13/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 57
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the Checkmate
case (calendar no. 15, 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference (calendar no. 7, 1/30/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 20, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 12/5/17:
Appearances required. The tentative ruling is that although there are substantial grounds under the Curtis factors to grant relief from the automatic stay, nevertheless it would be in the best interest of creditors to delay granting such relief, on a temporary basis, to afford the debtor a breathing spell from litigating the state court action, and to obtain a better sense of the debtor's assets and prospects for generating income, all of which this court will discuss further with the parties at the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
2:00 PM
Docket 1
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
2:00 PM
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
2:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
2:00 PM
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
2:00 PM
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the
2:00 PM
tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
fr. 1/23/18, 1/30/18
Docket 12
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 12, 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 5, 1/30/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 20, 1/23/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
2:00 PM
Movant(s):
Checkmate Kiing, Co., LTD Represented By Robert M Aronson
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 1
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 12, 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 5, 1/30/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
2:00 PM
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 8
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 12, 2/13/18 at 2:00 p.m.)
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 5, 1/30/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 20, 1/23/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
2:00 PM
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
9:45 AM
fr. 02/13/18
Docket 17
Tentative Ruling for 2/27/18:
Grant on the terms set forth in this Court's tentative ruling (see Order, dkt. 27). Appearances are not required. After the hearing time this Court will prepare the order and will mail a copy to the debtor (which he can present to any credit reporting agencies, creditors, or other persons).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Grant subject to (a) adequate service and (b) any oppositions presented at the hearing (see Order, dkt. 24). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
9:45 AM
Debtor(s):
Derek Campbell Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Maria T Farias Pro Se
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Melanie Lynne Orozco Pro Se
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
10:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Helen Clark Represented By
Nicholas W Gebelt
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
Docket 16
- NONE LISTED -
Debtor(s):
Manuel Jesus Luis Pro Se
Joint Debtor(s):
Odilia Luis Ontiveros Pro Se
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Paul Anthony McKee Represented By Donna R Dishbak
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
Docket 10
- NONE LISTED -
Debtor(s):
Paul Anthony McKee Represented By Donna R Dishbak
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
[TD Auto Finance LLC (2013 Chevrolet Cruze)]
Docket 12
- NONE LISTED -
Debtor(s):
Melodie A McCaffrey Represented By Regina Zeltser
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Docket 20
- NONE LISTED -
Debtor(s):
Steve Delatore Sierra Represented By Beatriz Chen
Joint Debtor(s):
Dolores Guevara Sierra Represented By Beatriz Chen
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 10
- NONE LISTED -
Debtor(s):
Miguel Angel Razo Represented By Daniel King
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
[Capital One Auto Finance, a division of CapitalOne, N.A.]
Docket 23
- NONE LISTED -
Debtor(s):
Nafiz Kadir Represented By
Stephen S Smyth William J Smyth
Joint Debtor(s):
Nighat Sultana Represented By Stephen S Smyth William J Smyth
Trustee(s):
Timothy Yoo (TR) Represented By Juliet Y Oh
10:00 AM
Docket 17
- NONE LISTED -
Debtor(s):
Marvin Alexander Quiroz Pro Se
Joint Debtor(s):
Sandra Araceli Mora Quiroz Pro Se
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
Docket 9
- NONE LISTED -
Debtor(s):
Agustin Robert Gonzalez Represented By Omar Zambrano
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 16
- NONE LISTED -
Debtor(s):
George Milton Riley Represented By Kenumi T Maatafale
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
Docket 26
- NONE LISTED -
Debtor(s):
Candace J. Lavin Represented By
R Grace Rodriguez
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Benjamin Gomez Rivera Pro Se
Joint Debtor(s):
Maritza Gomez Pro Se
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Samuel Eliazar Urrutia-Portillo Represented By
Michael H Colmenares
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Desiree Gutierrez Represented By Lauren M Foley
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Conrado Guadalupe Molina Represented By Lauren M Foley
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Stephen Dennis Boaz Pro Se
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Katie A Jasper Represented By Gregory Grigoryants
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Rafael Gonzalez Represented By
Michael H Colmenares
Joint Debtor(s):
Maria Elena Gonzalez Represented By
Michael H Colmenares
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Rosa Irma Chavez Represented By Benard C Udeozor
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Docket 10
- NONE LISTED -
Debtor(s):
Lisa Pitkow Represented By
Peter M Lively
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Leurdes Yasmin Acosta Represented By Daniel King
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Annie Eastwood Represented By David S Hagen
Joint Debtor(s):
Eric Steven Eastwood Represented By David S Hagen
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
Docket 17
- NONE LISTED -
Debtor(s):
Raul Amaya Pro Se
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
Hrg re: Reaffirmation Agreement [Regional Acceptance Corporation]
Docket 14
- NONE LISTED -
Debtor(s):
Ann Vigneron Pro Se
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
Docket 10
- NONE LISTED -
Debtor(s):
Rosemarie Parcon Martinez Represented By Philomena N Nzegge
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 13
- NONE LISTED -
Debtor(s):
Steven T. Bowen Represented By Janet A Lawson
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Docket 13
- NONE LISTED -
Debtor(s):
Darra Bishop Represented By
Allan D Sarver
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Docket 10
- NONE LISTED -
Debtor(s):
Laura Karely Labrada Perea Pro Se
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
[Capital One Auto Finance, a division of Capital One, N.A.]
Docket 11
- NONE LISTED -
Debtor(s):
Karina Elizabeth Rojas Represented By Tamar Terzian
Joint Debtor(s):
Lawrence Owen Lamontagne Jr. Represented By
Tamar Terzian
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
Docket 14
- NONE LISTED -
Debtor(s):
Karina Elizabeth Rojas Represented By Tamar Terzian
Joint Debtor(s):
Lawrence Owen Lamontagne Jr. Represented By
Tamar Terzian
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
Docket 9
- NONE LISTED -
Debtor(s):
Dane Scott Immel Represented By Louis J Esbin
Joint Debtor(s):
Myrna C. Immel Represented By Louis J Esbin
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
Docket 10
- NONE LISTED -
Debtor(s):
Graciela Figueroa Represented By Regina Zeltser
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
10:00 AM
Docket 9
- NONE LISTED -
Debtor(s):
Juan Rodriguez Represented By
Michael H Colmenares
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
Docket 7
- NONE LISTED -
Debtor(s):
Jose I Rivas Pro Se
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Marquisa Ann Smith Pro Se
Trustee(s):
John J Menchaca (TR) Pro Se
2:00 PM
Docket 3
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
Docket 4
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
Course of Business; and (2) Directing Banks and Financial Institutions to Honor and Process Checks and Transfers Related Thereto
Docket 5
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
of Business
Docket 6
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
Docket 7
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
to Honor Certain Pre-Petition Employee Wages and Benefits in the Ordinary Course of Business; (2) Authorizing Administration and Maintenance of Employee Benefits and Programs; (3) Directing Banks and Financial Institutions to Honor and Process Checks and Transfers Related Thereto; and (4) Granting Related Relief
Docket 8
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
Themed Sales; (2) Approving the Assumption of the Consulting Agreement with Liquidation Consultant Great American Group, LLC / Tiger Capital Group, LLC; and (3) Related Relief
Docket 17
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
Related Relief
Docket 21
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
Docket 19
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear (and pursuant to LBR 9075-1, any response may be presented orally).
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. As of the time when this tentative ruling has been prepared, there is no proof of service of the debtor's motions. The following tentative rulings are subject to (i) adequate proof of service and (ii) any oppositions presented at or prior to the hearing. In addition, rather than stating at length this Court's reasoning, the following tentative rulings adopt, to the extent relevant, the reasoning of this Court regarding similar motions in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46-47).
Notice/Service. Pursuant to LBR 9075-1(a)(2)(B), this Court has already orally and conditionally granted the debtor's request to shorten time on the motions identified below, subject to the right of any party in interest to object at or before the hearing to the adequacy of notice. With those limitations, the tentative ruling is to find notice adequate and grant the debtor's requests in its motions (e.g., dkt. 5, p.3:3-5) to excuse any requirement for telephonic notice provided that overnight delivery or other permissible expedited service (e.g., personal delivery, or email as permitted by applicable rules) has been delivered no later than 24 hours prior to this hearing to all persons with a pecuniary interest that could be adversely affected by the relief requested in each motion.
Immediate relief. With respect to any immediate relief described below, the tentative ruling is that the debtor has shown sufficient cause for such immediate relief under Rule 6003 (Fed. R. Bankr. P.), to the extent applicable, and the other rules and procedures governing relief on an emergency or expedited basis.
2:00 PM
Limit Notice Motion (dkt. 3). The tentative ruling is to grant this
motion, subject to the following adjustments. First, the Limited Service List must be augmented to include (i) junior lienholder Emerald Capital Funding, LLC ("Emerald") and (ii) the debtor's own bankruptcy counsel (because the motion apparently contemplates that all parties in interest - not just the debtor
- will be authorized to use the Limited Service List). Second, this Court contemplates limitations that parallel this Court's modifications to the parallel order in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 53).
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on the following conditions on an interim basis, with a final hearing at the same time as the continued status conference set forth below. No later than 2/23/18 the debtor must file a declaration of its CFO or other appropriate person certifying that, first, the debtor has taken measures to assure that prepetition debts are not paid out of its existing accounts (e.g., stopping payment on prepetition checks, except to the extent authorized by this court), and second, the debtor is maintaining sufficiently detailed books and records that, if it becomes necessary to analyze the debtor's finances as of the petition date, such analysis will not be impaired by the non-closing of the debtor's prepetition accounts.
Lease Rejection Motion (dkt. 7). The tentative ruling is to grant the motion on a final basis.
Employee Wages Motion (dkt. 8). The tentative ruling is to grant this motion immediately and on a final basis as to the employees, and to grant it as to the retention of Modern HR, Inc. ("HR") either immediately or at a continued hearing if the debtor can provide an offer of proof or evidence that HR's rates are within normal market rates for comparable services.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to approve the retention of Great American Group LLC and Tiger Capital Group LLC (collectively, "Liquidation Consultant") subject to the filing, no later than 2/23/18, of a satisfactory statement of Liquidation Consultant's distinterestedness on Local Form F 2014-1.STMT.DISINTEREST.PROF. In
2:00 PM
addition, the tentative ruling is to authorize the proposed sales of the debtor's inventory and furniture, fixtures and equipment ("FF&E"), free and clear of any liens, claims, encumbrances or other interests of all persons/entities who have been served with the motion, with all such interests to attach to proceeds of such sales, under 11 U.S.C. 363(b) and (f)(1), (2) and (5), for the reasons stated in the motion papers. In addition, the tentative ruling with respect to compliance with nonbankruptcy liquidation laws, restrictions in leases, and abandonment of property is to track the limitations in this Court's interim order on the parallel motion in the Bachrach case (no. 2:17-bk-15292- NB, dkt. 71). In addition, the tentative ruling is to grant all such relief on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Collateral/DIP Financing (dkt. 21, 22). The parties should be prepared to address the following issues. (i) Is there any evidence that the debtor is "unable" to obtain credit by granting a "senior or equal lien" to the lien of Siena Lending Group, LLC ("Siena"), within the meaning of 11 U.S.C. 364(d)(1)(A)? (ii) Why would it be appropriate for this Court to approve a roll- up, cross-collateralization, and other provisions that generally are disapproved (see dkt. 22)? (iii) Why should this Court grant broader relief in this case than it did in approving a similar motion in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46, Ex.A, pp.5-9, and dkt. 50)? The tentative ruling is to authorize either consensual or non-consensual use of cash collateral and, if the terms can be modified sufficiently to be acceptable, the proposed DIP financing, on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Notice of continued hearings. The tentative ruling is to set a deadline of 2/27/18 for the debtor to file and serve a notice of the final hearing on all motions that are only granted on an interim basis, and to set the same deadline for the debtor to file any supplements or amendments to such motions, with deadlines of 3/6/18 for any opposition and 3/13/18 for any reply.
Proposed Orders. This court intends to file these tentative rulings on the docket (with the caption, "Memorialization Of Tentative rulings" or the like). Thereafter, if appropriate, all orders can grant or deny relief "for the reasons stated in the Memorialization Of Tentative Rulings (dkt. ), as modified or supplemented on the record at the hearing" (or similar language). The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
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In view of the shortened time on the foregoing motions, parties in interest may appear and dispute the foregoing tentative rulings without prior notice to the debtor or the court (contrary to the usual requirements for "tentative rulings" under Judge Bason's Procedures, posted at www.cacb.uscourts.gov).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: March 20, 2018 at 2:00 p.m., status report due 3/6/18. (see order, dkt. 18).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 72
- NONE LISTED -
Debtor(s):
George Maria Ceballos Represented By Matthew D Resnik
S Renee Sawyer Blume
Movant(s):
The Bank of New York Mellon Represented By Brandye N Foreman Darlene C Vigil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 32
- NONE LISTED -
Debtor(s):
Luis Vitela Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Cecilia Vitela Represented By Rebecca Tomilowitz
Movant(s):
Nationstar Mortgage LLC Represented By Merdaud Jafarnia Aaron Meaux
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 73
- NONE LISTED -
Debtor(s):
Chandra Mohan Roy Represented By Tamar Terzian
Movant(s):
Wells Fargo Bank, NA, as Trustee, Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
IMPAC MORTGAGE COPR
vs DEBTOR
Docket 53
- NONE LISTED -
Debtor(s):
MICHAEL PRESTON Represented By Todd B Becker
Movant(s):
IMPAC Mortgage Corp. Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 165
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
James B Williams Represented By Claudia L Phillips
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST, NA vs
DEBTOR
Docket 63
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Javier Ruvalcaba Represented By Omero Banuelos
Joint Debtor(s):
Sonya Therese Ruvalcaba Represented By Omero Banuelos
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Merdaud Jafarnia Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ADAM BREGMAN
vs DEBTOR
Docket 48
Grant in part as provided below, with a caution to the movant that in future any motion for relief from the automatic stay to proceed with an unlawful detainer/eviction matter must use the mandatory form for such motions.
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Deny this request for lack of sufficient cause shown.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karen C. Cicero Represented By Raymond H. Aver
Movant(s):
Adam Bregman Represented By
H. Michael Soroy
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FCI LENDER SERVICES, INC.
vs DEBTOR
Docket 37
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 39).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marco Murrieta Represented By Luis G Torres
Movant(s):
FCI Lender Services, Inc., servicing Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST, NA vs
DEBTOR
Docket 40
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Brian D. Maloney Represented By Claudia L Phillips Matthew D Resnik
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 25
- NONE LISTED -
Debtor(s):
Miguel A Zendejas Represented By Alisa Admiral
Joint Debtor(s):
Salina L Zendejas Represented By Alisa Admiral
Movant(s):
WELLS FARGO BANK, N.A. Represented By Robert P Zahradka Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 13
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk- 28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for
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relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gale Ingrid Young Represented By Hayk Grigoryan
Movant(s):
U.S. Bank National Association Represented By Darlene C Vigil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 38
Grant the motion as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling to the order, thereby incorporating it as this court's final ruling. See LBR 9021-1(b) (1)(B).
Key documents reviewed (in addition to motion papers): The debtor's response (dkt. 51).
Tentative findings of fact:
In violation of the loan documents, an interest in the subject property purportedly was transferred to the debtor, either individually or as trustee of a purported trust.
The transfer was part of a scheme to delay or hinder movant’s remedies against the property by implicating the automatic stay of 11 U.S.C. 362(a) in the debtor’s bankruptcy case.
This court does not find that the debtor was part of any such scheme (i.e., based on the record before this court it appears that this may be a so-called “hijacked” or "dumping" case in which a third party seeks to implicate the automatic stay for their own benefit, without the debtor’s participation or acquiescence, by transferring property into a random bankruptcy estate, or by back-dating or falsifying a grant deed to make it appear that such a transfer occurred).
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Tentative conclusions of law:
Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk- 10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
Jurisdiction. This court has jurisdiction to grant the type of relief requested in the motion.
Termination of stay. The automatic stay, if it applies, is terminated pursuant to 11 U.S.C. 362(d)(1), (d)(4), and 1301(c).
Relief notwithstanding future bankruptcy cases. If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. The 14 day stay under FRBP 4001(a)(3) is waived.
No prejudice to debtor intended. Nothing in the foregoing disposition should be interpreted to support the application of 11 U.S.C. 109 (g)(2) in the event of any future dismissal of this bankruptcy case. See generally In re Leafty, 479 B.R. 545, 550 (9th Cir. BAP 2012); In re Payton, 481 B.R. 460 (Bankr. N.D. Ill. 2012).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Eurenie Fahmy Pro Se
Movant(s):
The Bank of New York Mellon fka Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SRIDHAR EQUITIES, LLC
vs DEBTOR
Docket 10
Tentative Ruling for 2/27/18:
Appearances are not required .
Proposed order: Movant may, if it wishes, lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
This Court has already issued its order granting relief from the automatic stay (dkt. 48) and although that order set this continued hearing (id. para. 18) so as to address whether to grant any additional or different relief, that order also set a deadline of 2/13/18 to file and serve any request for such relief, and the docket does not reflect any such request. Accordingly, the existing order (dkt. 48) remains unchanged and there is no need for this hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges,"
10:00 AM
"Bason, N.", "Instructions/Procedures").
At the 1/23/18 hearing, this court continued the matter at the debtor's request for additional time to secure the assistance of counsel or otherwise address the issues raised by this motion. There is no tentative ruling, but the parties should be prepared to address the issues raised by the underlying papers, including the debtor's responses (dkt. 19, 25) and the creditor's reply (dkt.
29).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling is to overrule the debtor's objections (dkt. 19, 25) to the extent that the debtor asserts a lack of adequate notice, but the parties should be prepared to address the debtor's other arguments. As for the alleged lack of notice, the debtor admits receiving notice on 1/6/18 which is over two weeks prior to this hearing and this court routinely shortens time on this type of motion (when there have been unauthorized transfers as part of an apparent scheme to hinder, delay or defraud a creditor), and the debtor has not established any undue prejudice arising from the current time frame.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Eurenie Fahmy Pro Se
Movant(s):
Sridhar Equities, LLC Profit Sharing Represented By
Catherine Schlomann Robertson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
COMPASS ALTERNATIVE INVESTMENTS, LLC
vs DEBTOR
Docket 22
Tentative Ruling for 2/27/18:
Appearances are not required .
Proposed order: Movant may, if it wishes, lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
This Court has already issued its order granting relief from the automatic stay (dkt. 45) and although that order set this continued hearing (id. para. 18) so as to address whether to grant any additional or different relief, that order also set a deadline of 2/13/18 to file and serve any request for such relief, and the docket does not reflect any such request. Accordingly, the existing order (dkt. 45) remains unchanged and there is no need for this hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges,"
10:00 AM
"Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the issues raised by the underlying papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eurenie Fahmy Pro Se
Movant(s):
Compass Alternative Investments, Represented By
Julian K Bach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICAN HONDA FINANCE CORP
vs DEBTOR
Docket 54
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
John Henry Grzyb Represented By Todd B Becker
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [PP] NISSAN-INFINITI, LT
vs
DEBTOR
Docket 46
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
10:00 AM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aldo Palacios Andrade Represented By Steven A Alpert
Joint Debtor(s):
Ana Cristina Lopez-Andrade Represented By Steven A Alpert
Movant(s):
NISSAN-INFINITI LT. Represented By
Michael D Vanlochem
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BMW BANK OF NORTH AMERICA
vs DEBTOR
Docket 31
- NONE LISTED -
Debtor(s):
Terence Mark Vallejo Represented By Charles J Brash
Movant(s):
BMW Bank of North America Represented By Bret D. Allen
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
DAIMLER TRUST
vs DEBTOR
Docket 13
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Francisco B Rodriquez Represented By Renee Nasiri
Joint Debtor(s):
Yolanda Villafana Represented By Renee Nasiri
Movant(s):
Daimler Trust Represented By
Jennifer H Wang
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
NISSAN MOTOR ACCEPTANCE CORP
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Antonia Valderas Represented By Raymond Perez
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
REGENCY CENTERS, LP
vs DEBTOR
Docket 19
Grant in part and continue in part to 3/6/18 at 10:00 a.m., as set forth below, subject to any opposition presented at the hearing (see Order, dkt. 18).
Appearances required.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the tenant named in the written lease. Reasons: (a) This Court's order shortening time (dkt.18) required service not only on the debtor but also on "all known co-tenants." (b) See LBR 4001-1(c)(1)(B). (c) Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: Myung Bo Kim aka Tony Kim, dba Fashion Time/Style Express (see dkt.19, Ex.1(a) at PDF p.4).
10:00 AM
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ae Sook Chung Pro Se
Movant(s):
Regency centers, LP Represented By
Ernie Zachary Park
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
U.S. BANK TRUST, NA vs
DEBTOR
Docket 45
Tentative Ruling for 2/27/18 (same as for 1/23/18 and 12/5/17 except encouraging telephonic appearances):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 47).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cesar Medrano Represented By Joshua L Sternberg
10:00 AM
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 105
Tentative Ruling for 2/27/18 (same as for 1/9/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling. This matter has been continued a number of times to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required. There is no tentative ruling. At the hearing on 10/3/17, this court continued the matter to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
Tentative Ruling for 10/3/17:
10:00 AM
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 107).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Partrick I. Ikhifa Represented By
Anthony Obehi Egbase Onyinye N Anyama Edith Walters
W. Sloan Youkstetter
Movant(s):
Wilmington Savings Fund Society, Represented By
Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 46
Debtor(s):
Norman T Cheng Represented By Holly Roark
Joint Debtor(s):
Maggie Cheng Represented By Holly Roark
Movant(s):
Wells Fargo Bank, N.A Represented By Kristin C Rawlings Brandye N Foreman Darlene C Vigil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 29
Tentative Ruling for 2/27/18 (same as for 1/30/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 12/19/17 and 1/30/18 hearings on the motion, this court continued the hearing at the request of the parties to provide them additional time to negotiate the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
10:00 AM
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alicia M. Olivero Ramirez Represented By Kenumi T Maatafale
Movant(s):
Wilmington Savings Fund Society, Represented By
Mark S Krause Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 42
Debtor(s):
Cristina Marie Pagan Nowling Represented By Kevin T Simon
Movant(s):
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 29
Tentative Ruling for 2/27/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 1/23/18, this court continued the matter at Movant's request to allow time for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
10:00 AM
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Davedillon S. Dancel Represented By
W. Derek May
Movant(s):
Wells Fargo Bank, N.A. Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PACIFIC UNION FINANCIAL, LLC
vs DEBTOR
Docket 33
Tentative Ruling for 2/27/18:
Take this motion for relief from the automatic stay off calendar, in view of this court's order (dkt. 39, para. 14) granting the debtor's motion to commence loan modification program, without prejudice to the movant self-calendaring this motion again if the loan modification program is terminated without a consensual loan modification. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Edison Dawson Represented By Michael E Clark Barry E Borowitz
Movant(s):
Pacific Union Financial, LLC Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SPECIALIZED LOAN SERVICING LLC
vs DEBTOR
Docket 61
Debtor(s):
Ananda Chandrasekera Alahakoon Represented By
Jeffrey J Hagen
Joint Debtor(s):
Chitra Ranjini Niyarepola Represented By Jeffrey J Hagen
Movant(s):
Specialized Loan Servicing LLC Represented By
Mark S Krause Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 29
Debtor(s):
Jose Luis Montes Represented By Phillip Myer
Joint Debtor(s):
Silvia Montes Represented By Phillip Myer
Movant(s):
The Bank of New York Mellon FKA Represented By
Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MISSION HEN, LLC
vs DEBTOR
Docket 44
Debtor(s):
Colleen Michelle Hall-Johnson Represented By Matthew D Resnik
Movant(s):
Mission Hen, LLC Represented By John W Cutchin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PRIMELENDING
vs DEBTOR
Docket 26
Debtor(s):
Roberto Lopez Gomez Represented By Theresa Hana
Movant(s):
PrimeLending, A PlainsCapital Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 243
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brian Lee Represented By
Christian T Kim
Movant(s):
Brad D Krasnoff (TR) Represented By John N Tedford
Trustee(s):
David A Gill (TR) Represented By John N Tedford Aaron E de Leest
11:00 AM
Docket 162
Deny the motion/objection to claim no. 2 of the Internal Revenue Service ("IRS") for the reasons stated below. Appearances required by counsel for the debtor to address the issue of attorney fees in this and other cases.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons for denial:
Complaint required. Under Rule 7001(6) (Fed. R. Bankr. P.) a proceeding to determine dischargeability of a debt must be initiated by a complaint, not a motion.
No showing that the issue needs to be addressed by this court. The debtor’s own motion concedes (dkt. 162, p.8) that the debtor’s chapter 7 discharge appears to include the 2008 tax debt to the IRS, and that the IRS (allegedly) orally stated that they would confirm this in writing. In other words, there does not appear to be any actual dispute.
It is true that the IRS also (allegedly) stated that they could not confirm this in writing for at least January and February of this year. But there is no time limit that would prevent the debtor from waiting to see if the IRS follows through on its alleged representation. If the IRS does not do that, the debtor can file a complaint later. See Rule 4007 (Fed. R. Bankr. P.) (nondischargeability complaint may be filed at any time, with inapplicable exceptions).
The motion is difficult to understand (like other papers filed by Mr. Wiggins,
11:00 AM
see dkt. 144), but it appears to imply some sort of need for an expedited determination. It states (dkt. 162, p.3:7-9) that "[d]ismissal [sic] of this claim" (by which Mr. Wiggins apparently means a judicial determination that the IRS claim is discharged) will "free up over $35,000 that the debtor, Ms. Allen, can devote to paying her mortgage and living expenses." It is unclear what Mr.
Wiggins means by "free up." The motion does not allege that any funds have been seized by the IRS, and if the debtor has any cash on hand then what is preventing her from paying her mortgage and living expenses?
In sum, it appears that there is no actual controversy, and nor is there any urgency. So this Court is concerned that Mr. Wiggins may have filed this motion simply in "churn" this case - to earn more attorney fees.
The claim objection fails to include a sufficient cost/benefit analysis, and this Court presumes that Mr. Wiggins will not charge any fees related to the motion. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). … [Emphasis added.]
The motion (claim objection) fails to include any such analysis. That is particularly troubling given (a) this Court’s concerns about whether there is any benefit to the debtor (or the estate) in bringing the motion (see issue "(2)" above) and (b) the history of Mr. Wiggins filing papers that are opaque, appear to be unnecessary, and may have been filed for improper purposes such as increasing attorney fees (see, e.g., Order to Show Cause, dkt. 144).
For these reasons, this Bankruptcy Court presumes that Mr. Wiggins will not charge any fees on this matter (including all past, present and future work related to this claim objection) and will return any fees that might be (or might have already been) awarded relative to this matter. If that is incorrect, then he must argue at the hearing why fees are appropriate.
Other attorney fees. At the hearing, Mr. Wiggins is directed to address whether this Court should issue an order to show cause why some or all of his attorney fees in this case and in any other case pending before this Court should not be reviewed again by this Court under 11 U.S.C. 329 and 330, in
11:00 AM
view of what this Court has learned about the services in this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jacqueline E Allen Represented By Herbert N Wiggins
Trustee(s):
Jason M Rund (TR) Pro Se
11:00 AM
to Determine Certain Debts to be Non-Dischargeable [11 U.S.C. § 523]
Docket 86
Grant motion and extend deadline for the trustee to file a complaint under 11
U.S.C. sections 523 and 727 to and including June 30, 2018. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
Movant(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
Trustee(s):
Brad D Krasnoff (TR) Represented By
11:00 AM
Eric P Israel Sonia Singh
11:00 AM
Docket 89
Grant, subject to inclusion in the proposed order/writ of the language required by LBR 7064-1(e). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
Movant(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
Trustee(s):
Brad D Krasnoff (TR) Represented By
11:00 AM
Eric P Israel Sonia Singh
11:00 AM
Adv#: 2:16-01008 Forrest Fykes, SR et al v. Armen Janian
11 U.S.C. section 523(a)(6)
fr. 7/19/16, 12/13/16, 05/02/17, 09/12/17
Docket 1
Tentative Ruling for 2/27/18:
Appearances required. At the hearing on 5/2/17 this court was persuaded to continue this matter to 9/12/17. This matter was further continued to today's date (see Order, adv. dkt. 18).
There is no tentative ruling, but the parties should be prepared to address (1) the results of their mediation, (2) whether to continue this status conference a short time (for finalization of any settlement) or a long time (far enough ahead that the parties can litigate their issues in State Court, which then presumably will have a partially or fully preclusive effect on any nondischargeability issues before this court), and (3) any other matters appropriate to address at this status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/2/17:
Appearances required. At the hearing on 12/13/16 this court was persuaded to continue this matter to today's date, with a deadline of 4/11/17 to complete mediation (see adv. dkt. 13 (mediation order)).
11:00 AM
There is no tentative ruling, but the parties should be prepared to address (1) the results of their mediation, (2) whether to continue this status conference a short time (for finalization of any settlement) or a long time (far enough ahead that the parties can litigate their issues in State Court, which then presumably will have a partially or fully preclusive effect on any nondischargeability issues before this court), and (3) any other matters appropriate to address at this status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/13/16:
Continue to 2/7/17 at 11:00 a.m. at which time this court anticipates addressing, in view of the State Court's determinations as to pending matters, what trial date and other deadlines to set. Appearances are not required on 12/13/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 7/19/16:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following issues:
Failure to file a status report. Why did the plaintiff not file a status report updating the Court as to the status of the pending state court litigation (adv. dkt. 4)? Should this Court issue an order to show cause based on plaintiff's disregard of this Court's order?
Status of the state court litigation. What is the status of the state court litigation?
Continued status conference. Assuming that the state court litigation is still pending, this Court intends to set a continued status conference for 11/8/16 at 11:00 a.m. The plaintiff must file a brief status report detailing the
11:00 AM
current status of the state court litigation by 10/25/16.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Armen Janian Represented By Leon Nazaretian
Defendant(s):
Armen Janian Represented By
Leon Nazaretian
Plaintiff(s):
Forrest Fykes, SR Represented By Michael D Anderson Leon Nazaretian
Valerie Fykes Represented By
Michael D Anderson
Forrest Fykes JR Represented By Michael D Anderson
Melissa Fykes Represented By Michael D Anderson
Trustee(s):
David M Goodrich (TR) Pro Se
11:00 AM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18
Docket 1
Tentative Ruling for 2/27/18:
Continue to 3/6/18 at 11:00 a.m. Appearances are not required on 2/27/18.
Reasons: At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). The plaintiff and one defendant (the debtor) have now filed a joint status report (adv. dkt. 10) requesting a brief continuance.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address why they failed to file the required status report, and also the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly
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consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/6/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines/dates: This adversary proceeding has been pending since 11/21/17. The tentative ruling is to set the following deadlines/dates. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/6/18
Continued status conference: 2/27/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Pro Se
Eric A. Martin Pro Se
Glenn J. Chaffin Pro Se
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan
fr. 06/13/17, 12/19/17, 1/30/18
Docket 1
Tentative Ruling for 2/27/18:
Continue to 5/8/18 at 11:00 a.m. with a brief status report due 4/24/18. Appearances are not required on 2/27/18.
Background. This adversary proceeding has been pending since 4/7/17, and is being jointly administered with Adv. No. 2:17-ap-01551 - all papers are to be filed in this adversary proceeding (adv. dkt. 26). The discovery cutoff and some other deadlines have been set, but no trial date or pretrial conference date has yet been set (adv. dkt. 29). Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 29). This Court previously ordered mediation (adv. dkt. 17) but at the status conference on 12/19/17 the parties reported that they had failed to comply with that order and the parties' latest status report (adv. dkt. 31) requests that they ordered to mediation again.
Mediation. The tentative ruling is to set a deadline of 3/13/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required. The court has reviewed the parties' joint status report (adv. dkt. 24) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (docket number(s) 22, and at the hearing on 12/19/17).
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/13/18
Continued status conference: 2/27/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Trial date and pre-trial schedule: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the status of this adversary proceeding.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 12) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a
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proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/6/17. Expert(s) - deadline for reports: 11/20/17
Expert(s) - discovery cutoff (if different from above): 12/4/17 Dispositive motions to be heard no later than: 1/25/2018 Joint Status Report: 12/5/17
Continued status conference: 12/19/17 at 11:00 a.m. Trial date and pre-trial schedule: To be set at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C Vanderhoof
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:17-01551 Wyndham Vacation Resorts, Inc. v. Martin
fr. 01/09/18, 1/30/18
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C Vanderhoof
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Docket 41
Tentative Ruling for 2/27/18:
This court previously granted the motion to incur debt (dkt. 41) but this court's order (dkt. 42) required that the debtors file declarations and appear at a continued hearing on 1/23/18. They and their attorney failed to do so, and therefore this Court issued an order to show cause (dkt. 46, the "OSC") why all of them should not be sanctioned. The debtors and their attorney have now filed declarations (dkt. 49, 51) that sufficiently address this Court's concerns, and therefore the tentative ruling to to discharge the OSC and not hold any further hearings on the motion to incur debt. Appearances are not required.
This Court will prepare orders reflecting such rulings after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required by one or both of the debtors. There is no tentative ruling, but the parties should be prepared to address the issues raised by this court's Order setting the matter for hearing (dkt. 42). Namely: (1) Why was this motion not brought sooner? (2) Why would a less expensive vehicle not be adequate? (3) Why have the debtors failed to file a declaration addressing these issues by 1/17/18, as required by that order? (The debtors have instead filed and served another copy of their motion, dkt. 45.)
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael S Lewis Represented By John Habashy
Joint Debtor(s):
Susan M Lewis Represented By John Habashy
Movant(s):
Michael S Lewis Represented By John Habashy
Susan M Lewis Represented By John Habashy
Trustee(s):
Kathy A Dockery (TR) Pro Se
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and their attorney should not be sanctioned for failing to comply with prior order
Docket 41
Please see the tentative ruling for the continued hearing on the motion to incur debt (calendar no. 9, 2/27/18 at 11:00 a.m.).
Debtor(s):
Michael S Lewis Represented By John Habashy
Joint Debtor(s):
Susan M Lewis Represented By John Habashy
Trustee(s):
Kathy A Dockery (TR) Pro Se
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[Proof of Claim No. 2] fr. 12/19/17, 1/9/18
Docket 105
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Movant(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Giovanni Orantes Mike Montes Mike Montes Luis A Solorzano Luis A Solorzano
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Docket 123
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons: Approve on a final basis: (1) $6,475 in fees and $80 in costs, minus an additional $555 reduction (dkt. 131) for a total award of $6,000, as requested pursuant to Applicant's Second Interim & Final Fee Application (dkt. 123); and (2) $11,036 in fees and $307.45 in costs, for a total of
$11,343.45 from Applicant's First Interim Fee Application (dtk. 106, 113, 119).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria Elizabeth Roman Represented By
Anthony Obehi Egbase Crystle J Lindsey Kevin Tang
Edith Walters Clarissa D Cu
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Movant(s):
A.O.E. Law & Associates, APC Pro Se
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8/22/17, 10/17/17, 12/19/17
Docket 1
Tentative Ruling for 2/27/18:
Continue to 5/29/18 at 1:00 p.m. in view of the debtor's post-confirmation status report (dkt. 126, 132). Brief status report due 5/15/18. Appearances are not required on 2/27/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
n/a
Deadlines/dates. This case was filed on 2/13/17.
Bar date: 5/30/17 (timely served, dkt. 31).
Amended Plan/Disclosure Statement (dkt. 93, 92): Approve the disclosure statement on a final basis, and confirm the plan under 1129(a).
Post-confirmation status conference: 2/27/18 at 1:00 p.m. Brief status report due 2/13/18.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. Based on the reply (dkt. 98) to this court's order to show cause ("OSC," dkt. 95) the tentative ruling is to discharge the OSC and address the proposed plan and disclosure statement as set forth below.
Deadlines/dates. This case was filed on 2/13/17.
Bar date: 5/30/17 (timely served, dkt. 31).
Amended Plan/Disclosure Statement (dkt. 93, 92): Set a deadline of 10/18/17 to lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 12/19/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 8/22/17:
Appearances required.
Current issues. This court has no issues to raise sua sponte, except for relatively minor comments and questions regarding the proposed plan and disclosure statement.
Deadlines/dates. This case was filed on 2/13/17.
Bar date: 5/30/17 (timely served, dkt. 31).
Amended Plan/Disclosure Statement (dkt. 83, 82): The tentative ruling is to set a deadline of 8/28/17 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 10/17/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion. Subject to any oral objection by the U.S. Trustee pursuant to the procedures established at the hearing on 6/13/17, the tentative ruling is as follows.
The proposed budget includes $800 per month in "personal care products and services" (dkt. 69, bankruptcy Schedule J, line 10) in addition to
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$1,000 per month in child care (id., line 8). But with 3 young boys, and the debtor's alleged reduction in music and martial arts lessons and other expenses (dkt. 70), the tentative ruling is that these remaining expenses can be approved.
The proposed budget (dkt. 69, bankruptcy Schedules I and J) still fails to provide a breakdown of business gross income, expenses, and net income (Schedule I, line 8a), although it includes partial information (dkt. 69 at PDF p. 14), and combined with the declarations from the debtor and her non-debtor husband (dkt. 70), there appears to be support for the debtor's calculations.
Based on the foregoing, the tentative ruling is to approve the budget motion, as amended by bankruptcy Schedules I and J (dkt. 69), on a final basis. But the tentative ruling is also to sanction counsel $200 for the failure to present the business budget in a clear format (instead of presenting the information in multiple documents in a way that makes it difficult for any parties in interest or the court to analyze).
Plan (dkt. 72) and Disclosure Statement (dkt. 71). First, the debtor served all parties in interest with these drafts, contrary to this court's order (dkt. 7, para. 4, and Procedures section V.N.2., posted at www.cacb.uscourts.gov). Serving drafts (particularly with errors) does nothing but confuse parties who are not involved in negotiations, and waste time and money.
Second, Exhibit A to the plan includes an error: an unsecured claim is listed in the section for secured claims, and the spreadsheet even alerts the user that there is an error by listing "Error" in the final column for Class 2B (dkt. 72, at PDF p.8) (and in Exhibit E).
Third, Exhibit C is blank (dkt. 71) - the debtor is permitted to incorporate the data from her own calculations (Exhibit I) but that data must be used in Exhibit C, to show how the debtor can afford plan payments.
Fourth, the proposed $173/mo. for "School Loan" appears to be an attempt to bury within the budget a priority treatment for student loan obligations (100% payment, v. 1.3% projected payment for other general unsecured creditors). The debtor can propose such treatment, but must make it explicit by separately classifying this debt.
Deadlines/dates. This case was filed on 2/13/17.
Bar date: 5/30/17 (timely served, dkt. 31).
Amended Plan/Disclosure Statement: file by 8/1/17 using the forms
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required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/22/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion/April MOR. This court has reviewed the amended schedules I and J filed on 5/15/17 (dkt. 62), as well as the debtor's April 2017 monthly operating report ("MOR"). It appears that the amended schedules I and J do not accurately reflect the actual expenditures of the debtor and her family.
For example, the budget provides for $250 in child care expenses, but in April the debtors spent far more than that: $200 for babysitting expenses and over $700 for their children's art, karate and music classes (some of that might be classified in other categories, such as "entertainment," but the debtor generally appears to be exceeding her budget for those other categories as well). Another example is that the debtor has also budgeted
$340 for telephone, cell phone, internet, satellite and cable services, but reported expenses of over $400 to Verizon, over $230 to Frontier Online and
$20 to AT&T.
Additionally, it appears the debtor has accounted for her office rental expenses twice: the debtor has reported $250 in net income from her social work in her amended schedule I, taking into account the $150 office rent, but the debtor has also reported the office rent as an expense in item 17.d. of her amended schedule J.
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Can the debtors comply with their amended schedules I and J? How
can the debtor and her family hope to have a successful reorganization if they cannot create and adhere to a realistic budget? This has been a recurring theme as reflected in the tentative rulings for 3/21/17, 4/4/17, and 5/9/17 (reproduced below).
The tentative ruling is to continue the hearing on the budget motion to the same time as the continued status conference (see below) subject to the following caveat. If the debtor has not satisfactorilly addressed these issues by the time of the next status conference then the tentative ruling is that she will have shown a willful failure to appear in proper prosecution of this case and this case will be dismissed with a 180 day bar against being a debtor in bankruptcy under 11 U.S.C. 109(g)(1).
Deadlines/dates. This case was filed on 2/13/17.
Bar date: 5/30/17 (timely served, dkt. 31).
Plan/Disclosure Statement: file by 6/23/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 7/11/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/9/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion. At the 4/4/17 status conference, this court set a deadline of 4/11/17 for the debtor to file amended bankruptcy schedules I & J that comply with the instructions on those forms to provide full disclosure of
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gross revenues, expenses, and net revenues from the non-debtor husband's business. This court has reviewed the debtor's case docket, and no amended schedules I and J have been filed. How can this court approve the debtor's budget motion based on her filed schedules I and J when those schedules are incomplete?
The tentative ruling is to continue the budget motion to the same date and time as the continued status conference, with a last-chance deadline of 5/16/17 to file fully compliant schedules I and J, failing which this court may dismiss this case, impose sanctions, or impose other remedies.
U.S. Trustee compliance. What is the status of the debtor's compliance with the U.S. Trustee's reporting requirements?
Deadlines/dates. This case was filed on 2/13/17.
Bar date: 5/30/17 (timely served, dkt. 31).
Plan/Disclosure Statement: file by 6/23/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/13/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/4/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion. This court's tentative ruling is to grant the debtor's budget motion on an interim basis, through a continued hearing to be held on 5/9/17 at 1:00 p.m., with a deadline of 4/11/17 for the debtor to file amended bankruptcy schedules I & J that comply with the instructions on those forms to
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provide full disclosure of gross revenues, expenses, and net revenues from the non-debtor husband's business.
Amended MOR/U.S. Trustee compliance. At the 3/21/17 case status conference, the debtor's counsel informed this court they the debtor would be filing an amended monthly operating report ("MOR") for February 2017. Additionally, the U.S. Trustee requested multiple documents and evidence from the debtor regarding various expenses and other aspects of the debtor's case. What is the status of the debtor's compliance with the U.S. Trustee's requests? Why has the debtor failed to file her amended February 2017 MOR?
Deadlines/dates. This case was filed on 2/13/17.
Bar date: 5/30/17 (timely served, dkt. 31).
Plan/Disclosure Statement: file by 6/23/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/9/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/21/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Cash collateral issues. The debtor lists a parcel of real property in her second amended Schedule A/B (dkt. 17, PDF p. 2), and a lessee of that property in her amended Schedule G (dkt. 17, PDF p. 12). She has also listed rental income in her amended Schedule I (dkt. 17, PDF p. 14), and two creditors holding claims secured by that real property in her Schedule D (dkt. 1, PDF p. 25). The foregoing notwithstanding, the debtor contends in her
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case status report that her secured lenders do not assert any interest in the rents collected from her real property, and that no motion for use of cash collateral is required (dkt. 20). Do neither of the lenders' security instruments include an assignment of rent clause?
Income/expenses and the debtor's budget motion (dkt. . In response to item 8.a. of the debtor's amended Schedule I (dkt. 17, p. 14), the debtor reports $2,750 in net income from rental property and from operating a business. In response to item 13, the debtor disclosed that she works part time as a social worker. The debtor did not, however, attach a detailed income and expense statement breaking down the $2,750/mo. she allegedly receives in rent and business income. Additionally, in response to item 19 of her amended Schedule A/B, the debtor lists a 100% community property interest in her husband's restaurant business (dkt. 17, PDF p. 6), of which her husband is allegedly the sole shareholder, but she has not disclosed any income from that business in her amended Schedule I (dkt. 17, PDF p. 14), and it is not clear whether she has reported any income from the business in her amended Statement of Financial Affairs (dkt. 17, PDF pp. 17-18).
The contribution income allegedly received from the debtor's spouse's uncle for automobile payments (see dkt. 17, PDF p. 3) is not disclosed in the debtor's amended Schedule I.
The debtor lists three vehicles financed by her husband in her amended Schedule A/B, but lists only one automobile payment in her amended Schedule J (dkt. 17, PDF p. 16, item 17.a.).
Unexpired leases. In her amended Schedule G, the debtor lists a sublease of $150/month with landlord Maria Lopez (dkt. 17, PDF p. 12). What is this lease for? Does the debtor's husband's business lease space? If so, why is that lease not listed on amended Schedule G?
Monthly Operating Report (dkt. 27, "MOR"). The MOR for February 2017 lists some cash transactions, but those do not appear to be consistent with the debtor's proposed budget, and it appears that the debtor is using cash rather than checks. Why?
Deadlines/dates. This case was filed on 2/13/17.
Bar date: 5/30/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 6/23/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
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U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 4/25/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria Elizabeth Roman Represented By
Anthony Obehi Egbase Crystle J Lindsey Kevin Tang
Edith Walters Clarissa D Cu
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Docket 31
Tentative Ruling for 2/27/18:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 229). Appearances are not required on 2/27/18.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 153). Appearances are not required on 12/12/17.
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Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 2/27/18 at 1:00 p.m., brief status report due 2/13/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Adopt the trustee's recommendation regarding re-issuance of a notice of case commencement, with a new bar date of December 31, 2017. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/19/17:
Appearances required.
Current issues.
Order for relief. This case was commenced as an involuntary
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chapter 7, and thereafter the debtor filed a motion (dkt. 19) to convert this case to chapter 11, which this court treated at a hearing on 8/8/17 as a consent to an order for relief conditioned on such converstion. This court orally ordered relief and granted the motion to convert to chapter 11, and although the latter order was reduced to writing (dkt. 25) the former was not. The tentative ruling is to direct the Chapter 11 Trustee to prepare and lodge a written order, memorializing that the oral order for relief was effective on 8/8/17. The parties should be prepared to address whether that written order should modify any deadlines that otherwise would apply (see next paragraph), notwithstanding that all parties in interest appear to have been present in person or on the telephone at that 8/8/17 hearing.
Lack of information. The Chapter 11 Trustee's status report (dkt. 79) indicates that the debtor has yet to provide information on numerous issues, notwithstanding Rule 1007(a)(2), (b) and (c). The docket does not reflect that the debtor has filed bankruptcy schedules, a statement of financial affairs, or other information, or filed any motion for extention of time. What is the current status, and what additional action may be appropriate?
Clients. This court has approved a client transfer protocol (dkt. 83). What is the status of those transfers?
Reconversion? The debtor's status report (dkt. 80, at PDF p.3:4- 21) suggests that, although the debtor and other parties in interest stipulated (dkt. 38) to the appointment of a chapter 11 trustee, and this court approved that stipulation (dkt. 42), nevertheless this case is essentially being operated as a chapter 7 liquidation and should be converted back to chapter 7. What are the positions of parties in interest on that issue?
Joint administration? Should this case be jointly administered (not procedurally consolidated) with the case of Maximum Legal (California), LLP (Case No. 2:17-bk-18433-NB)?
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: TBD after bankruptcy schedules are filed.
Plan/Disclosure Statement*: Do not file or serve until further order of this court.
Continued status conference: 10/17/17 at 1:00 p.m., brief status report due 10/10/17.
*Warning: special procedures apply (see order setting initial status
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conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Docket 1
Tentative Ruling for 2/27/18:
Continue to 5/29/18 at 1:00 p.m., brief status report due 5/15/18, all subject to being mooted if a final decree is issued before that time. Appearances are not required on 2/27/18.
Current issues. This court has no issues to raise sue sponte.
Deadlines/dates. This case was filed on 1/1/17, and the debtor's plan was confirmed on 10/24/17 (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Continue to 2/27/18 at 1:00 p.m., brief status report due 2/13/18, all subject to being mooted if a final decree is issued before that time. Appearances are not required on 12/12/17.
Current issues. This court has no issues to raise sue sponte.
Deadlines/dates. This case was filed on 1/1/17, and the debtor's plan was confirmed on 10/24/17 (dkt. 128).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Appearances required.
Current issues. This court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 1/1/17.
Bar date: 5/9/17 (service sufficient per adopted tentative ruling for 2/21/17).
Plan/Disclosure Statement (dkt. 119, 118). The debtor should be prepared to address whether service was sufficient - the declaration of service (dkt. 122) refers to only the "top 20" unsecured creditors - and whether the requirements for cramdown are satisfied.
Continued status conference: 12/12/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required.
Current issues. This court has no issues to raise sua sponte, except for relatively minor comments and questions regarding the proposed plan and disclosure statement.
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Deadlines/dates. This case was filed on 1/1/17.
Bar date: 5/9/17 (service sufficient per adopted tentative ruling for 2/21/17).
Plan/Disclosure Statement (dkt. 112, 111). The tentative ruling is to set a deadline of 8/28/17 to file (NOT SERVE - except on the
U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 10/17/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue as set forth below. Appearances are not required on 6/20/17.
Current issues.
Better cash flow. The debtor's latest Monthly Operating Report ("MOR") (dkt. 102, May 2017) shows almost no bank fees and what appears to be better cash flow. Compare, e.g., Dkt. 86, p.11 (Mar. MOR, $650 bank fees); dkt. 101, p. 11 (Apr. MOR, $496 bank fees). Accordingly, it appears appropriate to continue this status conference without requiring appearances.
Deadlines/dates. This case was filed on 1/1/17.
Bar date: 5/9/17 (service sufficient per adopted tentative ruling for 2/21/17).
Plan/Disclosure Statement*: file by 6/30/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
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Continued status conference: 8/22/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/9/17:
Continue to the date set forth below, at which time the debtor should be prepared to address why the debtor's March 2017 monthly operating report ("MOR") appears to reflect that the debtor incurred over $650 in bank fees on that account in March alone (dkt. 86, p. 11). This is the second month in a row in which the debtor has incurred significant bank fees on this account.
What is the debtor's explanation for this? Is this case viable? Appearances are not required on 5/9/17.
Deadlines/dates. This case was filed on 1/1/17.
Bar date: 5/9/17 (service sufficient per adopted tentative ruling for 2/21/17).
Plan/Disclosure Statement*: file by 6/30/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/20/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/11/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see
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www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Payroll account. The debtor's February 2017 monthly operating report ("MOR") appears to reflect that the debtor is carrying a negative balance of over $8,000 on its payroll account, and incurred nearly $900 in bank fees on that account in February alone (dkt. 78, p. 10). What is the debtor's explanation for this? Is this case viable?
Professional liability insurance. The February 2017 MOR also shows that the debtor's professional liability insurance expired on 3/27/17. Has that coverage been renewed?
Deadlines/dates. This case was filed on 1/1/17.
Bar date: 5/9/17 (service sufficient per adopted tentative ruling for 2/21/17).
Plan/Disclosure Statement*: file by 6/30/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/9/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/21/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Monthly Operating Report (MOR, dkt. 63). This is the debtor's third bankruptcy case, and it has already moved to a new location. Why does the MOR show a small loss? Is this case viable?
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Cash collateral. On 1/31/17, this court orally adopted its tentative ruling approving the debtor's cash collateral motion on a final basis, on the same terms on which relief was granted on an interim basis (dkt. 32). The debtor is reminded to lodge a proposed written order.
Deadlines/dates. This case was filed on 1/1/17.
Bar date: 5/9/17 (untimely served, dkt. 59 - dead, 2/9/17 instead of 2/7/17, but the tentative ruling is to excuse that minor delay in service).
Plan/Disclosure Statement*: file by 6/30/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 4/11/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/31/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash collateral. This court's tentative ruling is to approve the debtor's cash collateral motion on a final basis, on the same terms on which relief was granted on an interim basis (dkt. 32).
Utility motion. The debtor stated in its status report (dkt. 24) that it intended to file a utility motion no later than 1/20/17. No such motion has been filed. Has the debtor failed to furnished its utility provider(s) with adequate assurance, or done so without court authorization?
United States Trustee issues. Is the debtor in full compliance with the United States Trustee's reporting requirements? Has the debtor entered
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into a stipulation with the United States Trustee regarding its debtor in possession account(s), and appointment of a patient care ombudsman?
Internal Revenue Service. The debtor asserted in its case status report that the Internal Revenue Service is currently reviewing the debtor's amended 2012 tax returns, which may affect the amount of its claim. What is the status of that review, and is there an anticipated date for completion of that review?
Deadlines/dates. This case was filed on 1/1/17.
Bar date: 3/31/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 6/30/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/21/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/17/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This latest bankruptcy case was filed on 1/1/17. Why did the debtor fail to file and serve "first day" motions immediately - cash collateral; payroll; etc.? This is all the more egregious because this is the debtor's third bankruptcy case known to this court.
In the belatedly filed cash collateral motion (dkt. 13, p. 2:8) the debtor states that payroll was due on 1/13/17, and the debtor appears to take the position that authorization to use cash collateral is equivalent to an order also authorizing the payment of prepetition debts to employees. That is incorrect. Those are two separate issues, requiring two separate motions.
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In any event, did the debtor pay its 1/13/17 payroll, including
prepetition claims of its employees? If the debtor did pay those prepetition claims, it acted without authorization, so how can it be trusted to abide by its duties as debtor-in-possession? Conversely if the debtor did not pay its employees, it has mismanaged this case and prejudiced employees and possibly creditors.
In addition, as set forth in the tentative ruling for the cash collateral motion (1/17/17 at 1:00 p.m., calendar no. 6) the prosecution of the cash collateral motion has been inadequate.
Why should this court not dismiss this case with a one year bar against being a debtor in bankruptcy, or impose sanctions, or other remedies?
Deadlines/dates. This case was filed on 1/1/17. If this case is not dismissed or converted then the tentative ruling is to hold a continued status conference on 1/31/17 at 1:00 p.m., status report due 1/17/17 (per court's order setting case status conference, dkt. 8).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/9/17:
Continue to the date set forth below, at which time the debtor should be prepared to address why the debtor's March 2017 monthly operating report ("MOR") appears to reflect that the debtor incurred over $650 in bank fees on that account in March alone (dkt. 86, p. 11). This is the second month in a row in which the debtor has incurred significant bank fees on this account.
What is the debtor's explanation for this? Is this case viable? Appearances are not required on 5/9/17.
Deadlines/dates. This case was filed on 1/1/17.
Bar date: 5/9/17 (service sufficient per adopted tentative ruling for 2/21/17).
Plan/Disclosure Statement*: file by 6/30/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a
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later time).
Continued status conference: 6/20/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/11/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Payroll account. The debtor's February 2017 monthly operating report ("MOR") appears to reflect that the debtor is carrying a negative balance of over $8,000 on its payroll account, and incurred nearly $900 in bank fees on that account in February alone (dkt. 78, p. 10). What is the debtor's explanation for this? Is this case viable?
Professional liability insurance. The February 2017 MOR also shows that the debtor's professional liability insurance expired on 3/27/17. Has that coverage been renewed?
Deadlines/dates. This case was filed on 1/1/17.
Bar date: 5/9/17 (service sufficient per adopted tentative ruling for 2/21/17).
Plan/Disclosure Statement*: file by 6/30/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/9/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/21/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Monthly Operating Report (MOR, dkt. 63). This is the debtor's third bankruptcy case, and it has already moved to a new location. Why does the MOR show a small loss? Is this case viable?
Cash collateral. On 1/31/17, this court orally adopted its tentative ruling approving the debtor's cash collateral motion on a final basis, on the same terms on which relief was granted on an interim basis (dkt. 32). The debtor is reminded to lodge a proposed written order.
Deadlines/dates. This case was filed on 1/1/17.
Bar date: 5/9/17 (untimely served, dkt. 59 - dead, 2/9/17 instead of 2/7/17, but the tentative ruling is to excuse that minor delay in service).
Plan/Disclosure Statement*: file by 6/30/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 4/11/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/31/17:
Appearances required by counsel for the debtor but telephonic appearances
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are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash collateral. This court's tentative ruling is to approve the debtor's cash collateral motion on a final basis, on the same terms on which relief was granted on an interim basis (dkt. 32).
Utility motion. The debtor stated in its status report (dkt. 24) that it intended to file a utility motion no later than 1/20/17. No such motion has been filed. Has the debtor failed to furnished its utility provider(s) with adequate assurance, or done so without court authorization?
United States Trustee issues. Is the debtor in full compliance with the United States Trustee's reporting requirements? Has the debtor entered into a stipulation with the United States Trustee regarding its debtor in possession account(s), and appointment of a patient care ombudsman?
Internal Revenue Service. The debtor asserted in its case status report that the Internal Revenue Service is currently reviewing the debtor's amended 2012 tax returns, which may affect the amount of its claim. What is the status of that review, and is there an anticipated date for completion of that review?
Deadlines/dates. This case was filed on 1/1/17.
Bar date: 3/31/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 6/30/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/21/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 1/17/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This latest bankruptcy case was filed on 1/1/17. Why did the debtor fail to file and serve "first day" motions immediately - cash collateral; payroll; etc.? This is all the more egregious because this is the debtor's third bankruptcy case known to this court.
In the belatedly filed cash collateral motion (dkt. 13, p. 2:8) the debtor states that payroll was due on 1/13/17, and the debtor appears to take the position that authorization to use cash collateral is equivalent to an order also authorizing the payment of prepetition debts to employees. That is incorrect. Those are two separate issues, requiring two separate motions.
In any event, did the debtor pay its 1/13/17 payroll, including prepetition claims of its employees? If the debtor did pay those prepetition claims, it acted without authorization, so how can it be trusted to abide by its duties as debtor-in-possession? Conversely if the debtor did not pay its employees, it has mismanaged this case and prejudiced employees and possibly creditors.
In addition, as set forth in the tentative ruling for the cash collateral motion (1/17/17 at 1:00 p.m., calendar no. 6) the prosecution of the cash collateral motion has been inadequate.
Why should this court not dismiss this case with a one year bar against being a debtor in bankruptcy, or impose sanctions, or other remedies?
Deadlines/dates. This case was filed on 1/1/17. If this case is not dismissed or converted then the tentative ruling is to hold a continued status conference on 1/31/17 at 1:00 p.m., status report due 1/17/17 (per court's order setting case status conference, dkt. 8).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rescue One Ambulance Represented By
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Michael Jay Berger
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fr. 1/10/17, 02/28/17, 04/25/17, 06/20/17, 9/19/17, 12/19/17
Docket 169
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
Movant(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
2:00 PM
Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
and for setoff pursuant to 11 U.S.C. section 553 fr. 01/05/16, 02/23/16, 03/22/16, 4/5/16, 4/12/16,
5/16/16, 7/19/16, 8/9/16, 9/6/16, 10/11/16, 11/1/16,
2/21/17, 4/11/17, 5/23/17, 8/8/17, 9/12/17, 1/23/18
Docket 1
Tentative Ruling for 2/27/18:
Continue to 4/10/18 at 2:00 p.m. Appearances not required on 2/27/18.
(1) Current issues. This court has reviewed the parties' filed scheduling order (dkt. 61), Status Report (dkt. 62), and other filed documents in this adversary proceeding. There are no issues for this court to raise sua sponte.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to address the status of this adversary proceeding and why no status report has been filed, as required by this court's order (dkt. 58) and by the Local Bankruptcy Rules.
2:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 9/12/17:
Continue to 1/23/18 at 2:00 p.m. based on the representations in the plaintiff's status report (adv. dkt. 55). Appearances are not required on 9/12/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/12/17:
Appearances required. This court continued this matter from 8/8/17 to 9/12/17 sua sponte (dkt. 53). The parties should be prepared to address the issues noted in the tentative ruling for 8/8/17 (reproduced below).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/8/17:
Appearances required. The court has reviewed the crossclaim (dkt. 47) and answer to crossclaim (dkt. 52), and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the
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Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 6/23/15. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 10/9/17 Expert(s) - deadline for reports: 10/23/17
Expert(s) - discovery cutoff (if different from above): 11/6/17 Dispositive motions to be heard no later than: 12/21/17 Joint Status Report: 10/31/17.
Continued status conference: 11/14/17 at 11:00 a.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/23/17:
Please see the tentative ruling for calendar no. 9 (5/23/17 at 2:00 p.m.).
Tentative Ruling for 4/11/17:
Please see the tentative ruling for calendar no. 4 (4/11/17 at 2:00 p.m.).
2:00 PM
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
Plaintiff(s):
Official Committee of Creditors Represented By Christopher Celentino Peter W Bowie
Fariba Cohen Represented By
Michael H Weiss
2:00 PM
Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
fr. 8/8/17, 9/12/17, 1/23/18
Docket 47
Tentative Ruling for 2/27/18:
Please see the tentative ruling for the adversary proceeding status conference (calendar no. 2, 2/27/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the adversary proceeding status conference (calendar no. 5, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 9/12/17:
Please see the tentative ruling for the adversary proceeding status conference (calendar no. 5, 9/12/17 at 2:00 p.m.).
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
2:00 PM
Plaintiff(s):
Official Committee of Creditors Represented By Christopher Celentino Peter W Bowie
Fariba Cohen Represented By
Michael H Weiss
2:00 PM
Docket 78
- NONE LISTED -
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
Movant(s):
California Department of Education Represented By
Matthew C. Heyn
2:00 PM
CALIFORNIA BOARD OF EDUCATION
vs DEBTOR
Docket 48
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
Movant(s):
California Department of Education Represented By
Matthew C. Heyn
2:00 PM
Docket 6
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
2:00 PM
Docket 71
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
10:00 AM
vs DEBTOR
Docket 42
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Hortencia A. Maltez Represented By William G Cort
Movant(s):
US Bank Trust N.A., as trustee of Represented By
Michelle R Ghidotti James F Lewin Renee M Parker
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON TRUST, NA
vs DEBTOR
Docket 47
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
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possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Joan Madison Washington Represented By Peter M Lively
Movant(s):
Wilmington Trust, NA, successor Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 29
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
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possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robert Garviria Pro Se
Joint Debtor(s):
Adriana Juarez Pro Se
Movant(s):
The Bank of New York Mellon fka Represented By
Erin M McCartney
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
2nd CHANCE MORTGAGES INC.
vs DEBTOR
Docket 22
Appearances required. There is no tentative ruling but the parties must address the issues described below. In addition, the movant's counsel is directed to address why his reply (dkt. 26) has numerous typographical errors that make it difficult to read, and what steps he will take to fix that problem in future (in this case and other cases).
Analysis and tentative ruling: As stated in the debtor's response (dkt. 25) his proposed chapter 13 plan apparently contemplates full payment of the movant's claim during the term of the plan in Class 3A, and although the "boilerplate" language in that plan speaks of "bifurcation" it appears that the debtor intends to treat the entire claim as secured and pay it in full. But there are problems with treating the debtor's plan payments as the equivalent of adequate protection payments.
Specifically: (a) the principal dollar amount owed to the movant as listed in the plan is slightly less than what is listed in the motion papers, (b) the debtor does not provide any rate of interest of the movant's claim, and (c) the order of payment of claims under the plan (p.4 of the plan) provides that before the movant receives any distributions from the Chapter 13 Trustee the debtor's attorney and the Chapter 13 Trustee's fees will be paid, which means that the debtor will fall behind in payments to the movant before catching up, and that exposes the movant to the risk that the debtor will never catch up (if the case is converted or dismissed or if the debtor has a reduction in disposable income). Counsel for the debtor must address at the hearing how the debtor proposes to address the foregoing shortfalls.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
10:00 AM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Luis Macias Represented By Luis G Torres
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vsa DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
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possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
GLADYS BALLESTEROS Represented By
Ivan M Lopez Ventura
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Angie M Marth
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
DAIMLER TRUST
vs DEBTOR
Docket 34
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Neville Torrez Represented By Phillip Myer
Movant(s):
Daimler Trust Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FINANCIAL SERVICES VEHICLE TRUST
vs DEBTOR
Docket 57
Debtor(s):
Terica Amber Roberts Represented By Dheeraj K Singhal
Movant(s):
Financial Services Vehicle Trust Represented By
Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 41
- NONE LISTED -
Debtor(s):
Linda Peterson Represented By Julie J Villalobos
Movant(s):
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 28
Debtor(s):
Farideh Fathi Rad Represented By Nicholas M Wajda
Movant(s):
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 19
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
10:00 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Craig Stephen Radcliffe Represented By David Lozano
Joint Debtor(s):
Teresa Michelle Radcliffe Represented By David Lozano
Movant(s):
LBS Financial Credit Union Represented By Karel G Rocha
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HELEN TANG
vs DEBTOR
Docket 18
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Tritia Kelley Black Represented By Leonard Pena
Movant(s):
Helen Tang Represented By
Carol G Unruh
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 6
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
10:00 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eduardo Vincent Toledo Represented By Sam Benevento
Movant(s):
Eduardo Vincent Toledo Represented By Sam Benevento
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 10
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
10:00 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Katherine C. Ford Represented By Thomas B Ure
Movant(s):
Katherine C. Ford Represented By Thomas B Ure Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 5
Grant, subject to the following conditions, and also subject to any opposition at the hearing (see Order, dkt. 8). Appearances required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Blanca Lopez Represented By Luis G Torres
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA
vs DEBTOR
Docket 55
Tentative Ruling for 3/6/18 (same as 1/30/18 and 1/9/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling. This matter was continued to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under
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11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rachel Ramos Herron Represented By
Andrew Edward Smyth
Movant(s):
HSBC Bank USA, National Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK
vs DEBTOR
Docket 35
Debtor(s):
Rogelio Vega Represented By Rebecca Tomilowitz
Joint Debtor(s):
Sonia Vega Represented By
Rebecca Tomilowitz
Movant(s):
JPMORGAN CHASE BANK, Represented By Jenelle C Arnold Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 18
Tentative Ruling for 3/6/18:
Take off calendar, in view of this court's order (dkt. 32, para 14) granting the debtor's motion to commence loan modification program, without prejudice to the movant self-calendaring this motion again if the loan modification program is terminated without a consensual loan modification. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether they will agree to a continuance for a short sale and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 21).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis Arturo Zelaya Represented By Steven A Alpert
Movant(s):
HSBC Bank USA, National Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 190
- NONE LISTED -
Debtor(s):
Rodney Edward Donkin Jr Represented By Louis J Esbin
Movant(s):
Wells Fargo Bank, N.A. as Trustee Represented By
Robert P Zahradka Tina R Lyons
Gagan G Vaideeswaran Joseph C Delmotte
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 28
Debtor(s):
Blanca Illiana Murillo Represented By
Hale Andrew Antico
Movant(s):
PENNYMAC LOAN SERVICES, Represented By
Ciro Mestres John D Schlotter Robert P Zahradka Jenelle C Arnold
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
fr. 9/16/14, 10/21/14, 11/18/14, 11/25/14, 12/16/14, 01/27/15, 2/3/15, 3/10/15, 5/12/15, 07/21/15, 9/8/15,
10/27/15, 11/17/15, 1/19/16, 2/23/16, 3/8/16, 04/26/16,
5/31/16, 7/5/16, 9/13/16, 11/8/16, 11/29/16, 2/7/17,
5/23/17, 9/12/17
Docket 1
Tentative Ruling for 3/6/18:
Continue to 9/18/18 at 11:00 a.m. for the reasons set forth in the Trustee's status report (dkt. 538). A brief status report from the Chapter 7 Trustee is due 9/4/18, and other parties may but need not join in or file their own status reports. Appearances are not required on 3/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
QTS, INC. Represented By
James R Selth Elaine Nguyen Daniel J Weintraub
Trustee(s):
Timothy Yoo (TR) Represented By Monica Y Kim Jeffrey S Kwong
11:00 AM
11:00 AM
Adv#: 2:14-01462 Simon v. Marshall
fr. 12/5/17,12/19/17
Docket 258
Debtor(s):
John Jay Marshall Represented By Richard H Gibson Stephen L Burton Douglas A Crowder
Defendant(s):
John Marshall Represented By Richard H Gibson Stephen L Burton
Plaintiff(s):
Randy Simon Represented By Stephen L Burton
Trustee(s):
Richard K Diamond (TR) Represented By
Uzzi O Raanan ESQ Steven J Schwartz
11:00 AM
Adv#: 2:14-01462 Simon v. Marshall
4/19/16, 5/25/16, 5/27/16, 6/21/16, 07/27/16
11/29/16, 03/21/17, 06/27/17, 8/22/17, 10/17/17,
12/5/17
Docket 1
Debtor(s):
John Jay Marshall Represented By Richard H Gibson Stephen L Burton Douglas A Crowder
Defendant(s):
John Marshall Represented By Richard H Gibson Stephen L Burton
Plaintiff(s):
Randy Simon Represented By Stephen L Burton
Trustee(s):
Richard K Diamond (TR) Represented By
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Uzzi O Raanan ESQ Steven J Schwartz
11:00 AM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18
Docket 1
Tentative Ruling for 3/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties requested a brief continuance of this status conference from 2/27/18 to today's date (see Joint Status Report, adv. dkt. 10). At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). There is no tentative ruling, but the parties should be prepared to discuss the status of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 3/6/18 at 11:00 a.m. Appearances are not required on 2/27/18.
Reasons: At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced
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below). The plaintiff and one defendant (the debtor) have now filed a joint status report (adv. dkt. 10) requesting a brief continuance.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address why they failed to file the required status report, and also the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling
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is to set a deadline of 2/6/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines/dates: This adversary proceeding has been pending since 11/21/17. The tentative ruling is to set the following deadlines/dates. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/6/18
Continued status conference: 2/27/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By
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Robert S Altagen
Aston Business Solutions, Inc. Pro Se
Eric A. Martin Pro Se
Glenn J. Chaffin Pro Se
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
1:00 PM
Status Conference re: Chapter 11 Case
fr. 06/13/17, 6/20/17, 8/22/17, 10/3/17, 12/5/17, 1/9/18, 1/30/18
Docket 1
Tentative Ruling for 3/6/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Amended Plan, Amended Disclosure Statement: Counsel for the debtors should be prepared to address the status of the debtors' efforts to reach agreements with their secured creditors.
Monthly Operating Reports ("MORs"). Counsel for the debtor must explain at the hearing the enties reflecting transfers of $1,000 and $8,300 to "cash" "due to bk dismissal" listed in MOR#9 (dkt.76 at PDF pp.3&6, entries for 1/23/18 & 1/17/18). Has the debtor properly accounted for use of the cash while this case was dismissed?
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
AmPlan/AmDisclosure Statement*: This court has set a hard deadline of 3/30/18 to file an amended plan and amended disclosure statement
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required. If this court is persuaded to vacate the dismissal (see calendar No. 3, 1/30/18 at 1:00 p.m.), the tentative ruling will be to continue the status conference to March 6, 2018 at 1:00 p.m. and set a hard deadline of March 30, 2018 for the debtors to file an amended plan and disclosure statement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement: At the hearing on 12/5/17, this court cautioned debtors' counsel about the possibility of dismissing this case for failure to prosecute. Although the debtors have reached an agreement with Sheffield Financial (dkt. 51, 53), it does not appear that the debtors have reached agreements with any of their other secured creditors (see dkt. 45, Ex.H, at PDF p.14, Endnotes 2B-2D), despite this case having been pending for nearly eight months. As a result, counsel for the debtor should address
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why this court should not dismiss this case.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: If this case is not dismissed, this court will set a hard deadline for the debtors to negotiate agreements with their secured creditors regarding plan treatment.
Continued status conference: If this case is not dismissed, this court will set a date for a continued status conference.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement: The tentative ruling is not to impose at this time a deadline for filing amended documents, but to caution debtor's counsel that if this case is not adequately prosecuted then it may be dismissed.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: This court anticipates that at the continued status conference (set forth below) this court will set a new, hard deadline shortly thereafter for filing revised
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drafts of the plan and disclosure statement.
Continued status conference: 1/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement (dkt. 44, 45). There is a blank page in the plan that should be deleted (dkt. 44 at PDF p.11).
Exhibit F (dkt. 45 at PDF p.12) appears to contain some errors: line "1" lists general unsecured claims of $64,716, the source for which is listed as dkt.10, plus another $7,970.39 in line "8" from a "Continuation Sheet"; but dkt.10 is not a listing of creditors (it is a notice of commencement of this case and the meeting of creditors), the only bankruptcy Schedule E/F that appears on the docket (dkt.1) lists general unsecured claims of $64,672.60, and there is no "Continuation Sheet" attached.
The debtor discloses (dkt. 45, Ex.H, at PDF p.14, Endnotes 2B-2E) that agreements have yet to be reached with various secured creditors; and therefore it appears appropriate to defer any solicitation of votes. The debtor's counsel should be prepared to address how long it is expected to take before agreements are reached or unresolved disputes are ready for presentation to this court for decision.
Deadlines/dates. This case was filed on 5/10/17.
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Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: 11/14/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions per the above tentative ruling and any matters discussed at the status conference.
Continued status conference: 12/5/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Orders. The debtors' counsel should be prepared to address why certain orders have not been lodged, namely, (i) the order on the debtors' motion to value their personal property (dkt. 27), which motion was granted on 7/11/17, and (ii) the order on the debtors' application to employ general bankruptcy counsel (dkt. 22).
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/3/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Grant the budget motion and continue the status conference as set forth below. Appearances are not required on 6/20/17.
Current issues.
Budget motion. This court mistakenly ruled at the status conference on 6/13/17 that the budget motion would be granted on a final basis, not realizing that the 6/13/17 hearing on that motion had been vacated because an amended motion had been filed and set for hearing on this 6/20/17 date. See dkt. 16, 20. Notwithstanding that error, no opposition has been filed to the budget motion, and the tentative ruling is to issue an order after this hearing granting the amended motion on a final basis (the debtor is directed to lodge a proposed order within seven days after this hearing date).
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (dkt. 23) - to be served by 8/20/17
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/22/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 6/13/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves
but telephonic appearances are encouraged if advance arrangements are
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made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion. The debtors' amended budget motion filed on 6/1/17 (dkt. 20) appears to have only partially cured the defects pointed out by the U.S. Trustee in its opposition (dkt. 19) to the initial budget motion (dkt. 16). First, the debtor and/or spouse apparently has income from a property or business but has failed to provide a breakdown of gross receipts, ordinary and necessary business expenses, and calculation of the resulting monthly net income. See dkt. 20 at PDF p.7 (bankruptcy schedule "I" line 8a).
Second, the budget motion includes both (a) bankruptcy schedules "I" and "J" and (b) a spreadsheet showing what appears to be largely or entirely duplicative data. Which one controls (or are both the same)?
Third, the notice of the amended motion incorrectly provides that oppositions are due 14 days prior to the hearing on the motion, although the motion was set on shortened notice pursuant to this court's posted Procedures. For this reason, this court intends to hear oppositions to the amended budget motion at the hearing on 6/13/17.
The tentative ruling is to grant the budget motion on an interim basis, based on the proposed budget spreadsheet (not bankruptcy schedules "I" and "J"), with a deadline of 6/14/17 to file a supplemental declaration providing a thorough breakdown of gross revenues, expenses and calculation of net income for each property/business, and with a continued hearing on 6/20/17 at 1:00 p.m.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/20/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Steve O Chong Represented By Lionel E Giron Kevin Tang
Joint Debtor(s):
Edwina Theresa Chong Represented By Lionel E Giron Kevin Tang
2:00 PM
Adv#: 2:17-01503 Advocate Capital, Inc. v. Maximum Legal (California), LLP et al
Docket 24
See the tentative ruling for the Status Conference in this adversary proceeding (calendar no. 2 for 3/6/18 at 2:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
Richard Pachulski Represented By James KT Hunter
Movant(s):
Advocate Capital, Inc. Represented By Jeffrey I Golden Faye C Rasch
Advocate Capital, Inc. Represented By Jeffrey I Golden
2:00 PM
Advocate Capital, Inc. Pro Se
Plaintiff(s):
Advocate Capital, Inc. Represented By Jeffrey I Golden Faye C Rasch
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Adv#: 2:17-01503 Advocate Capital, Inc. v. Maximum Legal (California), LLP et al
and (2) Turnover of Property of the Estate Pursuant to 11 U.S.C. § 542 fr. 12/19/17
Docket 1
Tentative Ruling for 3/6/18:
Appearances required. This Court has reviewed the parties' status reports (adv. dkt. 28, 29) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. The issues raised in paragraph "(1)" of this Court's tentative ruling for 12/19/17 (reproduced below) appear to have been addressed (see adv. dkt. 28, 29) or waived/forfeited by parties who have not expressly addressed them.
Mediation. The parties are directed to report on the status of the 2/27/18 mediation. If the mediation was not successful, the parties should be prepared to argue the merits of the motion to dismiss filed by Advocate Capital, Inc. (adv. dkt. 24, the "MTD") and related papers (e.g., adv. dkt. 30, 34). To the extent that the foregoing does not resolve the parties' litigation, this Court anticipates setting deadlines for discovery and possibly other matters (see paragraph "(3)" of this Court's tentative ruling for 12/19/17, reproduced below).
Continued status conference: 5/29/18 at 1:00 p.m. Brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 9) and the other filed documents and records in this adversary proceeding. The tentative ruling is to excuse the parties from any Rule 26 compliance at this time (Fed. R. Civ. P. 26, incoroprated by Fed. R. Bankr. P. 7026), as requested by certain of the parties. In addition, the tentative ruling is as follows (the parties need not repeat their responses in the status report unless there is some change to those responses).
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
The tentative ruling is to set a deadline of 1/5/18 for the parties to agree on a mediator whose schedule is consistent with the needs of this matter and lodge mediation order(s) (if the parties are unable to agree on a single order they may lodge competing orders and Judge Bason will decide
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among them or issue his own, although it should be possible for the parties to agree on a mediator).
Deadlines: This adversary proceeding has been pending since 10/17/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/14/18 Expert(s) - deadline for reports: 5/18/18
Expert(s) - discovery cutoff (if different from above): 5/25/18 Dispositive motions to be heard no later than: 7/10/18
Joint Status Report: 3/27/18
Continued status conference: 4/10/18 at 2:00 p.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
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Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
Richard Pachulski Represented By James KT Hunter
Plaintiff(s):
Advocate Capital, Inc. Represented By Jeffrey I Golden Faye C Rasch
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Fargo Trucking Logistic Co LLC, Express FTC, Inc., Hancore Brokerage Services Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019
fr. 02/13/18
Docket 36
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference (calendar no. 4, at 2:00 p.m. on 3/6/18).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference (calendar no. 8, at 2:00 p.m. on 2/13/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Docket 1
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Motion to Approve Compromise (dkt. 36). The parties should be prepared to address the status of any settlement negotiations with respect to the pending motion to approve compromise.
Status Report. At the last status conference on 2/13/18, this court directed the debtor to file a brief status report by 2/27/18. As of the preparation of this tentative ruling, the debtor has not complied. The debtor should be prepared to address why it failed to comply with this court's order.
Employment application: Creditors' Committee Counsel (dkt. 47, 65). The objection by certain truck drivers (dkt. 63) has been withdrawn (dkt. 89). The debtor's limited objection (dkt. 55) and the reply papers (dkt. 85, 86) raise issues that are best addressed in connection with any application for compensation, at which time this Court can evaluate whether the hourly billing rates are commensurate with the nature of the work performed, the time spent on each task, and the other factors under 11 U.S.C. 330. Therefore the tentative ruling is to overrule the objection and authorize the employment.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues.
The parties should be prepared to address (a) whether the Court should order mandatory mediation of the proposed settlement, proposed assignment of the lease, and related issues; (b) whether concurrently this Court should set deadlines such as a discovery cutoff or, conversely, whether this Court should temporarily issue a stay of some litigation; and (c) whether the parties would prefer that this Court provide some tentative rulings or preliminary thoughts on various issues, or if instead it would foster possible settlement or serve other beneficial goals for this Court not to do those things at this stage of the case.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
n/a
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 2/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: This court will discuss setting a deadline for the filing of a draft plan/disclosure statement at the status conference.
Continued status conference: 2/13/18 at 1:00 p.m., brief status report due 1/30/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Docket 47
Please see the tentative ruling for the status conference (calendar no. 4, at 2:00 p.m. on 3/6/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 134
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
2:00 PM
Michael Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 135
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
2:00 PM
Michael Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
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Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 140
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
2:00 PM
Michael Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 133
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
2:00 PM
Michael Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
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Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
fr. 02/13/18
Docket 125
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
2:00 PM
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
David Smushkevich Pro Se
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
[Defendant, Phoenix Oil and Gas Inc. dismissed on 11/6/17] [Defendant, Tatyana Grukhina dismissed on 11/6/17] [Defendant, Charles Ross dismissed on 11/29/17] [Defendant, Tearlach Resources LTD dismissed on 11/29/17]
[Defendant, United Pacific Energy Operations and Consulting, Inc dismissed on 11/29/17]
Cont'd Status Conference re: Complaint 1) Breach of Written Contract; 2) Breach of Implied Contract and Fair Dealings;
3) Interfering with Economic Relationship; 4) Slander of Title;
5) Quiet Title; 6) Declaratory Relief
fr. 8/22/17, 11/14/17, 1/23/18, 02/13/18
Docket 1
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
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Please see the tentative ruling for the status conference in the main case (calendar no. 8, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 11/14/17:
Appearances required. The tentative ruling is to deny the motions for default judgments, without prejudice, for the reasons set forth below, and to set a continued status conference for 1/30/18 at 2:00 p.m.
On the one hand, there appears to be successful prosecution of this adversary proceeding because, according to the plaintiff's status report (adv. dkt. 92), all of the defendants have either agreed to the requested declaratory relief or have defaulted. On the other hand, there are some fundamental issues that appear to prevent this court from granting default judgments at this time.
Self-calendaring error. The motions for default judgments were only served on 10/27/17. See, e.g., Motion for Default Judgment Derek Wilshee (dkt. 83, 74) (collectively, the "Wilshee Default Motion"). That is insufficient time prior to the hearing, under the applicable rules, nor was there any cover notice of the hearing date and deadline for any opposition or response.
Jurisdictional issues.
Personal jurisdiction. Does the complaint adequately establish personal jurisdiction over each defendant? At least one defendant is alleged to be a resident of Australia (dkt. 1, para. 14), although the plaintiff has voluntarily dismissed claims against that defendant (dkt. 107). Are each of the defaulting defendants subject to personal jurisdiction?
Subject matter jurisdiction, and abstention. The complaint and motions for default judgment make somewhat vague assertions of other action(s) that were or are pending in other courts apparently involving the same subject matter, and involving at least preliminary injunctive relief if not other relief. Can this Bankruptcy Court assume jurisdiction over matters that are pending in other courts? Must or should this Bankruptcy Court abstain?
Allegations of wrongdoing. Where is the analysis tying each of the defaulting defendants to one or more of the specific acts of wrongdoing bringing them within the claims in the complaint? For example, the only
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allegation in the complaint regarding Mr. Wilshee (dkt. 1, para. 14) appears to be that he was at one time an officer of the debtor. How is that an act of wrongdoing?
The Wilshee Default Motion seeks a default judgment against Mr.
Wilshee of $431,472,300.00 (dkt. 74, at PDF p.51 of 53). How is he responsible for such alleged damages? Does the complaint need to be amended to establish, as against one or more of the defaulting defendants, how they are alleged to be liable?
Calculation of damages. An exhibit to the plaintiff's motions for default judgments asserts that "Based on Department of Conservation Records [available on a website and/or verified by whom?], these leases [which leases? the ones that allegedly were supposed to be assigned but were not?] were producing 1730 barrels of Oil a day [when?]" and "[w]ith today's technology [how is today's technology better?], a conservative figure would be 3500 barrels a day [based on whose expert opinion?] that will be used as a figure for all the losses caused by Western States International [how about other defendants?]." Dkt. 83, Ex.A, at PDF p.17 of 53. The same exhibit shows a calculation of alleged damages based on "Approx Production" of "105,000" which is far more than 3500 barrels (perhaps using a 30-day presumptive month multiplied by 3500 barrels a day?), an "Average Oil Price [from what source?]," and a "Cost [to extract, market, refine, deliver, and sell the oil - or some other or different set of things? based on what expert's opinion?]." Based on the foregoing questions, and applying Rule 55(b)(2) (Fed. R. Civ. P.) (incorporated by Rule 7055, Fed. R. Bankr. P.), it appears that additional evidence and a "prove up" hearing will be needed to determine the amount of damages, if not other issues.
Alleged costs, attorney fees, and interest. The debtor/plaintiff asserts $1 million in costs (dkt. 74 at PDF p.51 of 53) - how is that possible? What are the components? Attorney fees are alleged to be $300,000 - this case has barely commenced, so how is that possible? Where are the daily time sheets and/or other support for this figure? Prejudgment interest is alleged to be at a 10% rate per year starting 1/1/11. What is the contractual or statutory basis for that interest rate and that commencement date? The purported damages were incurred month by month, so how can interest run from before those damages were incurred?
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Declaratory relief. The plaintiff makes broad allegations about the rights under various contracts, or arising from breaches of those contracts or by operation of law. Where is the support for these allegations? The plaintiff cannot place the burden on this court to sort through numerous provisions of various contracts to piece together the plaintiff's theory. The plaintiff must provide specific, easy-to-follow analysis and evidence.
Conclusion. Because the motions for default judgments are both procedurally and substantively deficient in all of the ways set forth above, the tentative ruling is to deny them without prejudice.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. This court notes that the parties were directed to file a joint status report two weeks in advance of this hearing (dkt. 2), but have not done so. In addition, this court notes that the tentative ruling in the main case status conference (calendar no. 3, 8/22/17 at 2:00 p.m.) is to dismiss the main case, which normally would terminate this adversary proceeding.
Nevertheless, to preserve all rights in the event that this court were to be persuaded not to dismiss the main case, this court has reviewed the other filed documents and records in this adversary proceeding and issues the following tentative ruling.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the
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Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 6/19/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 1/12/18 Expert(s) - deadline for reports: 1/26/18
Expert(s) - discovery cutoff (if different from above): 2/9/18 Dispositive motions to be heard no later than: 3/2/18
Joint Status Report: 11/28/17
Continued status conference: 12/12/17 at 11:00 a.m. Trial deadlines to be determined at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes
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Luis A Solorzano
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
Jag Pathirana Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
David Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
2:00 PM
DOES 1 through 10, inclusive Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
1/23/18, 02/13/18
Docket 1
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Default judgment motion - Wilshee (adv. dkt. 140). Deny for lack of service. See dkt. 140 at PDF p.4 (serving defendant at "ENTER ADDRESS HERE").
Default judgment motion - JNDDC, LLC (adv. dkt. 135). Deny for lack of service. See dkt. 135, last two pages (defendant not listed in service list).
Default judgment motion - Flavio Rodriguez (adv. dkt. 133). Deny for lack of service. See dkt. 133 at PDF p.8 (marked up by someone - movant? - to show deficiencies in completion of proof of service) and dkt. 133 last two pages (defendant not listed on service list).
Default judgment motion - Jag Pathirana (adv. dkt. 134). Grant. It appears that plaintiff has abandoned claims against defendant Jag Pathirana other than "clearing title" to the plaintiff/debtor's alleged property interests at issue in the complaint. That appears to moot the relevant concerns previously raised by this court (see adv. dkt. 116, exhibit).
Case status report (case dkt. 122) and adversary proceeding against Bureau of Land Management (Adv. No. 2:18-ap-01057-NB). The debtor should be prepared to provide an update as to the status of these matters.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: 7/10/17 and 1/26/18 (sufficiently served, dkt. 56, 60, 103, 107, 110, 111, 121, 123).
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Plan/Disclosure Statement*: TBD.
Continued status conference: 4/10/18 at 2:00 p.m., brief status report due 4/3/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status Reports (main case dkt. 122; adv. no. 2:17-ap-01326-NB, dkt. 132). The debtor/plaintiff suggests that it will be filing a motion to approve a disclosure statement. Is that premature, given the following issues?
Motion to amend complaint (adv. dkt. 125). The parties should be prepared to address the issues raised in the motion and in the oppositions filed by the California Department of Conservation, Division of Oil and Gas, and Geothermal Resources ("DOGGR") (adv. dkt. 125, 130, 131).
In addition, the debtor/plaintiff should be prepared to address whether the proposed amended complaint cures the deficiencies in the original complaint, and whether any ruling on the motion to amend the complaint should be deferred until after default judgments are (or are not) obtained on the existing (original) complaint, for the reasons set forth in this Court's Memorialization Of Reasons For Denying Motions For Default Judgments (captioned for the adversary proceeding but erroneously filed in the main case as dkt. 118). See also Order denying prior motions for defaul judgments (adv. dkt. 117) and subsequent Motions for default judgments (adv. dkt. 133, 134,
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135).
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60, 103, 111, 121, 123); supplemental date of 1/26/18 (order served late, but the tentative ruling is to excuse that lateness, dkt. 107, 110).
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/20/18 at 2:00 p.m., status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue the status conferences in both the main case and the adversary proceeding (adv. no. 2:17-ap-01326-NB) to 2/13/18 at 2:00 p.m. with a status report due 2/6/18 (at which time other documents are also due as set forth below) for the reasons set forth below. Appearances are not required on 1/23/18.
Current issues
Reasons for continuance: (i) because of the problems noted below;
(ii) because of the debtor's untimely last-minute filing of status reports (the debtor is cautioned that continued untimely filings may result in sanctions); (iii) because of the inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government, (iv) to be concurrent with the (improperly self-calendared) motion to amend the complaint, and (v) in view of the debtor's various status reports (main case dkt. 117, adv. dkt. 122, 127, 129).
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Bar date. The debtor's proofs of service of the bar date order are
missing exhibits and incomprehensible (see dkt. 110, 111). The debtor is directed to file, no later than 2/6/18, either a corrected proof of service or an application (supported by a declaration) to set yet another supplemental bar date - whichever is appropriate.
Status of existing complaint in adversary proceeding. On 11/20/17 this court issued an order (adv. dkt. 117) denying the plaintiff/debtor's motions for default judgments, without prejudice. The debtor now seeks to amend the complaint (adv. dkt. 125). All of these things moot the motions for default judgments so the hearings on those motions have been vacated.
In addition, the tentative ruling is to memorialize this court's reasons for denying the motions for default judgments by filing on the docket a copy of this court's adopted tentative ruling for the 11/14/17 hearings on those motions (reproduced within the tentative ruling for calendar no. 9. 1/23/18 at 2:00 p.m.).
Motion to amend complaint (adv. dkt. 125). This motion was self- calendared for 2:00 p.m. (a time that cannot be used for self-calendaring) on 2/13/18. Nevertheless, the tentative ruling is to permit that motion to proceed at that time.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60); supplemental date of 1/26/18, to be served no later than 11/15/17 (per Order, dkt. 107) but proofs of service are incomprehensible (dkt. 110, 111) - see above under "current issues".
Plan/Disclosure Statement*: TBD.
Continued status conference: as set forth above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the following issues.
Current issues. The debtor has filed a second (very belated) proof of service (dkt. 103) of this court's order (dkt. 56) setting a bar date. Under that order the bar date was set as 7/10/17 and service was required no later than 5/8/17. What does the debtor's belated service do except cause confusion? Does the debtor require a new bar date for previously unknown creditors?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60; but see above under "current issues").
Plan/Disclosure Statement*: TBD.
Continued status conference: 1/30/18 at 2:00 p.m., status report due 1/16/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
The tentative ruling is to dismiss this case with a 180 day bar for willful failure to appear in proper prosecution, as set forth below. See 11 U.S.C. 109(g)(1).
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Appearances are not required.
Reasons: This case was filed on 11/23/16. The debtor's assets consist of disputed rights in hydrocarbon leases. See Status Report, dkt. 81. Realizing any value from those rights apparently depends on retaining special counsel who will diligently prosecute the debtor's claims. Despite numerous opportunities, the debtor has failed to satisfy the prerequisites for retention of special counsel.
Inadequate declarations about "connections"
At the hearing on 7/11/17 this court extensively reviewed the evidence that would be required before this court could approve the application to employ the latest proposed special counsel, Mr. Montes. That included a requirement of detailed declarations from Mr. and Mrs. Hoats regarding any transfers of any property (including intangible property) involving the debtor and any of them, as well as any other "connections" (as that term is used in Rule 2014, Fed. R. Bankr. P.) to the debtor and any other party in interest.
This court recognizes that Mr. and Mrs. Hoats are not the professionals whose employment is being sought. Nevertheless, given their very close ties to the debtor, and their failure to disclose connections to the prior proposed special counsel that raised questions about conflicts of interest, this court orally ordered the debtor to provide their declarations at the hearing on 5/2/17. That order has been ignored.
Knudsen factors
This court also directed Mr. Montes to file a declaration addressing the factors that this court must consider in assessing his request to be paid more frequently than once every 120 days. See In re Knudsen, 84 B.R. 668, 672- 73 (9th Cir. BAP 1988). Mr. Montes has filed such a declaration (dkt. 82) and has adequately summarized the factors (id., p.3:15-23) but he has not adequately addressed the third factor, which he summarizes as: "any funds paid but later disapproved by the court can be recovered from the professional" in one or more of the ways listed in Knudsen. (Emphasis added.) Those ways are:
[a. Holdback] retainer payments are for only a percentage of the amount billed so that the likelihood or necessity of repayment is minimal [Mr. Montes suggests a 10% holdback, which has not been shown to be adequate - the typical amount is 20%, and that typically applies only to well established firms whose ability to repay
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funds is reinforced by the firm's longevity and reputation or similar considerations];
[b. Bond] counsel can post a bond covering any possible reassessment [Mr. Montes has not addressed this factor];
[c. Financial ability to repay] counsel's financial position makes it certain that any reassessment can be repaid [Mr. Montes has not addressed this factor]; [and/or]
[d. Hold funds in trust account] funds paid prior to allowance are held in a trust account until a final or interim fee allowance is made [Mr. Montes has only offered to place the 10% proposed holdback in a trust account]. [Knudsen, 84 B.R. 668, at 672]
The debtor appears to cite the wrong statutory authority
The debtor's application to employ Mr. Montes (dkt. 65) requests that his employment be approved under subsection "(e)" of 11 U.S.C. 327. But that subsection only applies by its terms to an attorney who "has represented the debtor" (i.e., prepetition counsel whose employment is to continue postpetition). Id. (emphasis added).
That is not the end of the analysis, because it has been held that special counsel can be employed even when such counsel has not represented the debtor prepetition. See In re Fondiller, 15 B.R. 890, 892 (9th Cir. BAP 1981) (emphasis added), appeal dism., 707 F.2d 441 (9th Cir. 1983). Although Fondiller has been interpreted as authorizing employment under subsection (e) (see, e.g., Covenant Fin. Group of Am., Inc., 243 B.R. 450, 455 & n. 8 (Bankr. N.D. Ala. 1999)), the precise holding of Fondiller appears to be that special counsel can be employed under subsection "(a)" of Section 327 because any "omission" in subsection "(e)" does not limit the general authority in subsection "(a)." See Fondiller, 15 B.R. at 891-92 (interpreting § 327(a) by comparison with §§ 327(c) and (e)).
True, the precise statutory authority appears to make little if any practical difference, because Fondiller held that when counsel is only employed to perform limited services, then an interest "adverse to the estate" means "an adverse interest relating to the services which are to be performed by that attorney," which appears to mean that the inquiry for proposed special counsel under subsection "(a)" is the same as under subsection "(e)." Fondiller, 15 B.R. at 892 (emphasis added). Mr. Montes' declaration (included in dkt. 65) appears to meet this test because he states that he has no adverse interest.
Nevertheless, as stated above this court has required additional
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evidence from Mr. and Mrs. Hoats and that evidence has not been provided. In addition, because the debtor has sought authority under subsection "(e)" instead of "(a)" it appears not have met the technical requirements for employment of Mr. Montes.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 7/11/17:
Appearances required.
Current issues
Employment of special counsel. Deny the application to employ the Law Offices of M. Brian McMahon (dkt. 46) because he no longer intends to pursue employment. See dkt. 73, para. 3. Deny the application to emply the Law Offices of Mike Montes, Jr. (dkt. 65) due to the failure to address the issues raised by this court in the tentative ruling for 5/2/17 (reproduced below) (without reaching the issues raised by the U.S. Trustee's objection, dkt. 72, and the debtor's reply, dkt. 74). The U.S. Trustee is directed to lodge proposed orders denying each application within seven days after this hearing date.
Lack of progress. Should this case be dismissed for lack of prosecution?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/22/17 at 2:00 p.m., status report due 8/15/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 6/13/17:
Continue to 7/11/17 at 1:00 p.m. to allow the debtor time to prosecute an employment application regarding Mr. Motes (see debtor's case status report, dkt. 62). Appearances are not required on 6/13/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/2/17:
Appearances required. There is no tentative ruling, but the debtor's proposed attorney, Brian McMahon Esq., should be prepared to address the concerns set forth in the U.S. Trustee's objection (dkt. 49) and the other issues set forth below.
Current issues.
Proposed special counsel.
Background. On 4/5/17 the debtor filed an application for authority to employ the law offices of Mr. McMahon as special counsel under 11 U.S.C. 327(e) (dkt. 47). On 4/12/17 the United States Trustee ("UST") filed an objection to the employment application, which expressed concerns about the payment arrangement proposed in the application (dkt. 49).
The debtor filed a statement of disinterestedness for Mr. McMahon (dkt.53), and a reply (dkt.55), stating that a third party, Ms. Lilian Hoats, will be paying the attorney fees for Mr. McMahon's representation. Ms. Hoats is the CEO of Inviron Technologies, Inc. ("Managing Member"), which is the debtor's managing member (dkt. 55, Ex.1, p.1, recital "b"). Attached to the reply (dkt. 55, Ex.1) is a written document that purports to be a waiver of conflicts (if any exist) among the debtor, Ms. Hoats, and the Managing Member (the "Hoats/Managing Member Conflict Waiver").
The Attorney-Client Retainer Agreement attached to the employment application (dkt. 46, Ex.1) provides that Mr. McMahon is representing not only the debtor but also its affiliates Riverwood Energy, LLC ("Energy Affiliate") and Riverwood Resources Ltd. ("Resources Affiliate"). This court is not aware of the precise organizational and contractual relationships among the debtor, Energy Affiliate, and Resources Affiliate, nor of any written document purporting to be a waiver of conflicts (if any exist) among them.
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Statutory provisions and rules
Although special counsel does not have to be "distinterested" (compare 11 U.S.C. 327(a)), special counsel still must not "represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed." 11 U.S.C. 327(e) (emphasis added). Under Rule 2014 (Fed. R. Bankr. P.) both Mr. McMahon and the debtor were supposed to disclose all connections between Mr. McMahon and "the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee."
The disclosures have not been adequate. This court does not know enough about the underlying litigation and the organizational and contractual relationships among the various entities to assess whether there may be conflicts of interest between the debtor, on the one hand, and Ms. Hoats, Managing Member, Energy Affiliate, and/or Resource Affiliate.
A DIP's conflicts generally cannot be waived
Any purported conflict waiver probably cannot waive actual conflicts.
See, e.g., In re Perry, 194 B.R. 875, 880 (E.D.Cal.1996) (waiver of conflict by non-debtor parties was insufficient and "[i]nformed consent could not be obtained" because "the real parties in interest in this case are the creditors, and that is not a waivable conflict"); In re B.E.S. Concrete Products, Inc., 93 B.R. 228, 235 (Bankr. E.D. Cal. 1988).
But while actual conflicts of interest create a violation of 11 U.S.C. 327 which would require disqualification of the proposed professional, the mere existence of a potential conflict of interest does not require disqualification, and it is up to the court's discretion whether the purported conflict is sufficiently threatening to the estate to warrant disqualification. In re Wheatfield Business Park, LLC, 286 B.R. 412, 421 (Bankr. C.D. Cal. 2002).
Are proposed counsel and the debtor aware of any actual conflicts?
How about potential conflicts?
The purported conflict waiver is incomplete
The Hoats/Managing Member Conflict Waiver is not actually signed by Ms. Hoats in her individual capacity (she has only signed it on behalf of the debtor's Managing Member). In addition, as noted above, this court is not aware of any purported conflict waiver among the debtor and Operating Affiliate or Resources Affiliate.
There might be conflicts among the debtor and Ms. Hoats
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A third party who funds a retainer for the debtor (the "Funder")
generally has some pre-existing relationship with the debtor, and/or some motivation to providing the funding. Those things increase the likelihood that the Funder could be the recipient of an avoidable preference, or might have alter ego liability, or otherwise might have interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a third party is not outright prohibited, it is fraught with ethical concerns. At the hearing, counsel for the debtor and proposed special counsel should be prepared to address the following.
Terms. What are the precise agreements, understandings or expectations regarding the funds -- e.g., are the funds a loan, a gift, an investment, or something else?
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and that the sole attorney-client relationship and duty of loyalty is with the debtor, not the Funder? Who provided such advice: independent counsel? counsel for the debtor? the debtor's proposed special counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing? Ms. Hoats has signed the Hoats/Managing Member conflict waiver on behalf of the debtor: how can she, acting for the debtor, waive conflicts with herself?
Other considerations. Has proposed special counsel demonstrated or represented to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Lotus Prop's LP, 200 B.R. 388 (Bankr. C.D. Cal. 1996) (rejecting per se disqualification when fees are paid by third party); and compare In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990) (per se rule). See generally In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
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Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/4/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status report. This court's previous tentative ruling (reproduced below) directed the debtor to file a status report by 3/14/17. Why has no such status report been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/7/17:
Continue to 4/4/17 at 2:00 p.m., status report due 3/14/17. No appearances are required on 2/7/17.
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(1) Current issues
This case was filed on 11/23/16. The debtor's status report (dkt. 34) states that the debtor intends to retain special counsel, and the monthly operating reports (dkt. 37, 38) appear to show no activity other than opening DIP bank accounts and paying associated fees. Although progress in this case has been slow, it does not appear efficient to hold a status conference at this time. If substantially more progress is not shown by the next status conference, this court may dismiss this case for failure to appear in proper prosecution. See 11 U.S.C. 109(g)(1), 349.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Substitution of attorney. On 12/23/16, the debtor filed a substitution of attorney (dkt. 22) reflecting that current proposed counsel is Giovanni Orantes, Esq. Why has no employment application been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent,
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then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/13/16:
Appearances required.
Current issues
Counsel for the debtor should be prepared to address why no status report has been filed (see dkt. 3); why the docket does not reflect that anything has been done in this case to date; and why this court should not convert or dismiss this case.
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor and by the debtor(s) themselves, pursuant to the order setting this status conference (dkt. 3).
Current issues.
First Day Motions. The debtor should be prepared to address the necessity of first day motions such as cash collateral, payroll, utilities, etc. To the extent that those motions are necessary, why have they not yet been filed?
Deadlines/dates. This case was filed on 11/23/16.
Bar date*: to be set at the continued status conference.
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Plan/Disclosure Statement*: same.
Continued status conference: 12/13/16 at 2:00 p.m., initial status report due 11/29/16.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
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Docket 27
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Xavier A Amaya Represented By Stephen S Smyth William J Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gregory Paul Larson Represented By Julie J Villalobos
Joint Debtor(s):
Sheila Larson Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 18
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Melissa Michelle Springer- Represented By
Rabin J Pournazarian
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 13
Revised Tentative Ruling for 3/8/18:
Continue to 4/5/18 at 8:30 a.m., with a deadline of 3/22/18 to file and serve the debtor's declaration addressing the following issues. Appearances are not required on 3/8/18.
Reasons: (1) The evidence in support of the motion (dkt. 13, p.5 & Ex.1) fails to describe the foundation for the Kelley Blue Book ("KBB") valuation of the vehicle (number of miles, vehicle condition, options such as turbocharging or moonroof, etc.) and does not show that this information was input into the KBB program; and (2) the KBB printout states that it is a "private party" value, but under 11 U.S.C. 506(a)(2) the value means "the price a retail merchant would charge for the property ..." (emphasis added) (which this Court expects is higher than the "private party" value).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/8/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Melissa Michelle Springer- Represented By
Rabin J Pournazarian
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Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 20
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the motion, the opposition (dkt. 21) and the reply (dkt. 27).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 36
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 39).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Rosa Jerez Represented By
Rebecca Tomilowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 8
Debtor(s):
Ronald Martinez Represented By Moises A Aviles
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
of claim no. 1 filed by Cavalry SPV I, LLC
Docket 32
Continue to 4/5/18 at 8:30 a.m. to address the following issues. Appearances are not required on 3/8/18.
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that counsel for the debtor may be charging the bankruptcy estate (and the debtor) more than it would cost simply to pay the projected distribution to the claim. No later than 3/15/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection (so as not to further waste the time of this Bankruptcy Court, the claimant, and any other parties in interest in addressing this matter).
Counsel is not expected to charge any fees on this matter. This Bankruptcy Court presumes that counsel will not charge any fees on this
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matter (including all past, present and future work related to this claim objection) and will return any fees that might be (or might have already been) awarded relative to this matter. If that is incorrect, then counsel must appear at the continued hearing and argue why fees are appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Sunny H Luong Represented By Michael Y Lo
Joint Debtor(s):
Tiffany Ly Represented By
Michael Y Lo
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 18
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Samir Mourad Represented By Krystina T Tran
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 39
Deny for lack of adequate service, use of a form of motion that is inapplicable in chapter 13, and for the reasons stated in the opposition papers (dkt. 57, 60) (except to the extent that those opposition papers rely on the standards that would apply if this case were proceeding under chapter 7). Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eurenie Fahmy Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 23
Grant in part and continue in part to 4/5/18 at 8:30 a.m., with a deadline of 3/13/18 for a declaration of debtor's counsel authenticating timesheets, a deadline of 3/20/18 for any objection thereto, and a deadline of 3/27/18 for any reply, all as further set forth below. Appearances are not required on 3/8/18.
The tentative ruling is that recordation of the abstract of judgment - when the judgment was solely against the debtor - could not be anything but an "act to collect, assess, or recover a [prepetition] claim against the debtor" within the meaning of 11 U.S.C. 362(a)(6). It does not matter that the debtor had already conveyed away any real property because there would be no point in recording an abstract except either (a) the mistaken belief that the debtor did have real property in the county and/or (b) the expectation that the debtor might obtain real property in the county in future, and either one of those things is an attempt to "collect, assess, or recover" the prepetition claim. Moreover, there is no dispute that the creditor knew of the bankruptcy case and that its agent's recordation of the abstract was pursuant to instructions (not some sort of mix up amounting to an unintentional act), so the violation of the automatic stay was "willful" within the meaning of 11
U.S.C. 362(k). See In re Breul, 533 B.R. 782 (Bankr. C.D. Cal. 2015).
That said, section 362(k) applies to an individual "injured" by willful violation of the automatic stay, and there is no evidence of any injury except that the reply asserts (without evidence) that to date the debtor's attorney fees related to this matter amount to $2,910 (dkt. 20, p.2:8) and that if an evidentiary hearing is required then there will be additional injuries in the form of the debtor having to take time off of work to testify, as well as additional attorney fees. Accordingly, it appears appropriate to continue this matter with
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the dates set forth at the start of this tentative ruling for evidence of attorney fees and expenses. If the creditor does not dispute that evidence, or if this matter is otherwise capable of resolution without further hearing, then this Court will issue a tentative ruling awarding damages prior to the continued hearing; and otherwise this Court anticipates that such tentative ruling will set an evidentiary hearing or establish other appropriate procedures to resolve this matter.
Finally, the tentative ruling is that the record does not support the imposition of punitive sanctions. Although the creditor could have acted more promptly and transparently, and could have acknowledged its violation and assured the debtor's counsel that it would take corrective action immediately, nevertheless the creditor's delay was relatively minor, and apart from causing the debtor to incur more attorney fees that delay does not appear to have caused any substantial harm.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
George Esparza Represented By Barry E Borowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
by Claimant Employment Development Department.
Docket 41
Continue to 4/5/18 at 8:30 a.m. to address the following issues. Appearances are not required on 3/8/18.
Reasons:
Service. The proof of service does not reflect service on the Employment Development Department to the exact address provided in the proof of claim (e.g., one address fails to include "BOCS MIC 91" and the other address includes an incorrect zip code). The debtor is directed to re-serve the claim objection and file an amended proof of service by no later than 3/15/18.
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that counsel for the debtor may be charging the bankruptcy estate (and the debtor) more than it would cost simply to pay the projected distribution to the claim. No later than 3/15/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
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a withdrawal of the claim objection (so as not to further waste the
time of this Bankruptcy Court, the claimant, and any other parties in interest in addressing this matter).
Counsel is not expected to charge any fees on this matter. This Bankruptcy Court presumes that counsel will not charge any fees on this matter (including all past, present and future work related to this claim objection) and will return any fees that might be (or might have already been) awarded relative to this matter. If that is incorrect, then counsel must appear at the continued hearing and argue why fees are appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Mario Anthony Singleton Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 40
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): LoanMe, Inc.'s Notice of No Opposition to Motion For Order Disallowing Duplicate Proof of Claim of LoanMe, Inc. [Claim # 15 on Court's Claim Register] (dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Panee Bunnag Represented By Randy D Gruen
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 35
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shirley Swayne Represented By Tina H Trinh
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 36
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shirley Swayne Represented By Tina H Trinh
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 34
Continue to 4/5/18 at 8:30 a.m. to address the following issues. Appearances are not required on 3/8/18.
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that counsel for the debtor may be charging the bankruptcy estate (and the debtor) more than it would cost simply to pay the projected distribution to the claim. No later than 3/15/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection (so as not to further waste the time of this Bankruptcy Court, the claimant, and any other parties in interest in addressing this matter).
Counsel is not expected to charge any fees on this matter. This Bankruptcy Court presumes that counsel will not charge any fees on this
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matter (including all past, present and future work related to this claim objection) and will return any fees that might be (or might have already been) awarded relative to this matter. If that is incorrect, then counsel must appear at the continued hearing and argue why fees are appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Yolanda Cadiz Manikis Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 02/02/17, 03/02/17, 03/30/17, 06/22/17,08/17/17, 10/5/17, 11/2/17, 12/7/17, 02/08/18
Docket 195
Tentative Ruling for 3/8/18:
This matter is under submission. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/8/18:
Continue hearing to 3/8/18 at 8:30 AM. Appearances are not required on 2/8/18.
At the hearing on 12/7/17, this court continued the matter to 2/8/18 to serve as a status conference to address whether, in view of any discovery propounded by the debtor, and any responses thereto, the debtor had established any realistic hope of being able to prosecute the motion successfully. If so, this court would address what further procedures to implement, such as setting an evidentiary hearing.
But in the two months that have elapsed since the prior hearing, the debtor states that he has not propounded any discovery (dkt. 254).
Accordingly, the matter is deemed submitted on the present record and no further briefing is permitted.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/7/17:
Depending upon the outcome of Nationstar's motion for reconsideration (calendar no. 27, 12/7/17 at 8:30 a.m.), this court will discuss how the parties would like to proceed with this matter and set a continued status conference.
Tentative Ruling for 10/5/17:
Deny. Appearances are not required.
Proposed order: Nationstar is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Background
As this court understands the debtor's assertions, his motion involves the senior lien (Claim No. 8) on his principal residence at 28832 Benjie Way, Lancaster, CA (the "Property"). Originally the holder of that lien was BAC Home Loans ("BAC"), but subsequently the claim was transferred to Nationstar Mortgage, LLC (dkt. 89) ("Nationstar").
The debtor asserts that Nationstar violated the discharge injunction by initiating foreclosure proceedings and refusing (for a number of months) to release its lien. The debtor admits that he must show a "willful" violation of the discharge injunction. The debtor's assertions are puzzling for several reasons.
Normally, the rights of a senior lienholder on a debtor's principal residence cannot be modified. See 11 U.S.C. 1322(b)(2). The only statutory exception is that arrears can be cured during the term of the plan; but the long term debt and lien survive. See 11 U.S.C. 1322(b)(5). Therefore, if the debtor fails to pay the full, unaltered amount of the debt, the senior lienholder can foreclose without violating the discharge injunction.
Of course, junior liens on principal residences can be avoided if they
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are entirely underwater (because then they are not "allowed secured claims," so they are not entitled to the protection of the above-cited statutes). See In re Zimmer, 313 F.3d 1220 (9th Cir. 2002) and In re Lam, 211 B.R. 36 (9th Cir. BAP 1997). But even then, the junior lienholder receives a lot of very clear notice, which means that the debtor has a good record to establish a "willful" violation of the discharge injunction if the junior lienholder attempts to foreclose after its lien has been avoided.
Specifically, the junior lienholder must be served with a required form of motion to determine that the lien is entirely underwater (Local Form F 4003-2.4, at dkt.14 in this case), that motion expressly states when the lien is
to be avoided (see id.) (normally either upon completion of the plan, or receipt of a chapter 13 discharge), and if the lien actually is to be avoided then the court issues an initial order granting the motion (Local Form F 4003- 2.4.ORDER, at dkt. 32 in this case) and a second order, after the preconditions for avoiding the lien have been satisfied, avoiding the lien (Local Form F 4003-2.4.ORDER.AFTERDISCH).
Again, however, this matter involves a senior lien. In this case it appears that the debtor is relying on a very unusual provision regarding that lien which was added to the confirmation order. But, as discussed below, there is no showing that Nationstar was made aware of that provision at any time before it released its lien; and that provision is ambiguous on its face, so by itself it does not appear to establish any "willful" violation of the discharge injunction.
Highly unusual modification of the senior lien at the confirmation hearing On 6/14/12 this court held a hearing on whether to confirm the debtor's
chapter 13 plan or dismiss the case. After several breaks in the hearing for the parties' negotiations, an agreement was reached and subsequently included in a special provision of the confirmation order. That order provides:
For purpose of plan confirmation, the value of the real property commonly known as 28832 Benjie Way, Lancaster, CA 93536 is determined to be $194,000. The amount of the secured claim which shall be paid, in full, during the life of the chapter 13 plan is
$169,340, with interest at the rate of 6.75% for the remaining 48 months of the Chapter 13 Plan. [Dkt. 73, p.3, para. 1.b.]
This court is not aware of any evidence in the record that the debtor ever pointed out this language to Nationstar. As noted above, normally senior
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liens pass through bankruptcy unaffected, so the burden is on the debtor to show that Nationstar was even aware of this special provision in the confirmation order.
Moreover, even if Nationstar knew of this special provision, the language on its face is somewhat ambiguous about whether the in personam and in rem liability are actually reduced to $169,340, or if that is just what must be fully paid during the remaining 48 months of the plan without reducing the long-term obligation to pay any remaining balance. Although the former interpretation seems more likely (based solely on the above quote), the typical treatment of senior liens is to provide for some payments (arrears) during the plan without reducing the long term obligation, so, again, the language is somewhat ambiguous. Moreover, the ultimate question is whether this provision is clear enough that (if Nationstar was even aware of this language) Nationstar "willfully" violated this provision and thereby willfully violated the discharge injunction.
On 11/20/12 Claim No. 8 was transferred from BAC to Nationstar (dkt. 89). The transfer document lists the claim in the full amount of $379,125.14. Moreover, the order says nothing about when the lien will be avoided.
The debtor seems to think it is when he receives his discharge, which is one of the typical choices (the other being upon completion of the plan), but again, the order itself is silent, so the question is whether Nationstar's failure to recognize when its lien was avoided amounts to a willful violation of the discharge injunction.
From the foregoing it appears that nothing in the record provided clear notice to Nationstar that (a) whatever unpaid balance remained (out of the full
$379,125.14 debt) would be forgiven at the end of the plan, or (b) whether and when its lien would be avoided. Normally none of those things would happen to a senior lienholder, and if they did they would be the subject of a motion and two orders, rather than a special, somewhat ambiguous provision inserted into a confirmation order.
Apparent lack of other clear notice to Nationstar
The debtor points to the reports provided by the Chapter 13 Trustee. It is true that the trustee's notice of intent to file final report (dkt. 172) was served on Nationstar on 5/12/15, and the final report (dkt. 176) was filed on 6/17/15 and approved on 6/18/15 (dkt. 179), but nothing in those documents states whether the $169,340 was in full payment of the claim or if the balance
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remained due, as would be typical for a senior lien on a principal residence.
The debtor received a discharge on 6/22/15 (dkt. 181). But the debtor has not shown how Nationstar had any clear notice that this meant its lien was avoided (again, typically the senior lien on a principal residence would be unaffected by the discharge).
On 7/27/15 the debtor (acting without an attorney) apparently sent a letter to Nationstar (dkt. 207, Ex.C). But that letter is somewhat difficult to follow (unsurprisingly for a non-lawyer's letter) and it does not explain any of the above. In addition, Nationstar asserts that the letter was incorrectly addressed (dkt. 208, p.8:11-23) and the debtor's (belated) reply (dkt. 237) does not dispute that issue.
The debtor points to a letter from Nationstar's attorneys on 12/15/15 stating that the loan has been referred to them for foreclosure. Dkt. 184, Ex.A (last page). Former counsel for the debtor attests that he called that firm on 3/31/16 (dkt. 184, p.5, para.4), but he does not say that he explained any of the above (nor does it seem likely that he did, at least in any way that Nationstar clearly understood, because the subsequent motion papers do not clearly explain the special provision to this court).
On 12/8/16 the debtor filed the present motion (dkt. 195) seeking sanctions for violation of the discharge injunction. That motion refers to the motion to avoid the junior lien, but does not explain how the senior lien was (purportedly) altered: there is no citation to, let alone quotation of, the (somewhat ambiguous) special provision the confirmation order.
On 3/16/17 Nationstar, having apparently figured out the facts, send a release of its lien to the county recorder. Dkt. 208, Ex.A. On 3/23/17 Nationstar filed its opposition (dkt. 208) which cites to and quotes the special provision in the confirmation order (id., p.2, para.8) - the first time this court was apprised of the precise basis for the debtor's arguments. The opposition point out the lack of evidence that Nationstar had actual notice of the special provision in the confirmation order, or any other facts that would have made its alleged acts "willful":
Debtor’s claim that Nationstar is in contempt and violated the discharge injunction is premised on numerous unsubstantiated allegations that Debtor reached out to Nationstar and advised it that the lien was to be released due to the cramdown [i.e., the special provision in the confirmation order], despite having never filed a Motion to Value Collateral. Debtor has also failed to meet
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his burden in showing that Nationstar knew of the discharge injunction was applicable and acted with intent to violate the injunction. [Dkt. 208, p.4:6-10, emphasis added.]
The opposition also cites authority expanding upon the willfulness
requirement, and holding that a willful violation of the discharge injunction must be shown by "clear and convincing" evidence.
On 9/28/17 the debtor (now represented by different counsel) filed a belated reply (dkt. 237). That reply does not address any of the foregoing issues.
The reply does explain many ways in which the debtor allegedly suffered emotional and financial damages. It specifies that the debtor seeks an award of $893,964.85 in alleged actual damages plus $15 million in punitive damages.
Conclusion
Whatever harm the debtor suffered from Nationstar not releasing its lien sooner is tragic. But the debtor has the burden to show, by clear and convincing evidence, that Nationstar knew the discharge injunction applied to its acts, and that it nevertheless proceeded in willful violation of the discharge injunction. Based on the evidence summarized above, this court does not understand the debtor's factual or legal theory to be able to meet that burden. Therefore, it does not appear appropriate to issue an order directing Nationstar to show cause why it should not be sanctioned.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 8/17/17:
Appearances required. On 6/19/17, this court entered its order assigning this dispute to mediation (dkt. 215). There is no tentative ruling, but the parties should be prepared to address the status of their negotiations.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/30/17:
Appearances required.
On 4/27/16, nearly one year ago, this court entered its order granting the debtor's motion to reopen his case to file the subject motion (dkt.186). The debtor filed the motion on 12/8/16 (dkt. 195), and due to the debtor's failure to correct multiple defects therewith (see this court's adopted 2/2/17 tentative ruling on the motion, reproduced below), this court's tentative ruling for the 3/2/17 hearing on this motion was to deny it.
At the 3/2/17 hearing on the motion, however, this court was persuaded to grant the debtor's request for another continuance to cure the deficiencies in the motion, which it appears the debtor has now done (see dkt. 204, 207).
This court has also reviewed the opposition to the motion filed by Nationstar Mortgage LLC (dkt. 208).
There is no tentative ruling, but the parties should be prepared to address the status of their disputes, and why this court should not order the parties to participate in mandatory mediation.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/2/17:
Deny. Appearances are not required.
Proposed order: This court will prepare the order.
Reasons for denial: At the 2/2/17 hearing on the motion, this court adopted its tentative ruling and continued the hearing to allow the movant to correct certain deficiencies in service and a lack of evidence in support (2/2/17 tentative ruling reproduced below). This court has reviewed the case docket, and no supplemental proof of service or evidence in support of the motion has been filed.
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/2/17:
Continue to 3/2/17 at 8:30 a.m. to address the following issues. Appearances are not required on 2/2/17.
Reasons:
Service. There has not been any response to the motion, but that may be due to apparent deficiencies in service. Specifically, the motion papers were not served:
to the address for notices in the creditor's transfer of claim (dkt. 89) which was filed prior to the time that the motion papers were served (and which appears to be the most recent designated address) (FRBP 2002(g));
to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment of law (FRBP 7004(b)(3)), at an address that appears to be reasonably calculated to reach the officer (e.g., corporate headquarters) (note: Judge Bason does not require that a specific individual be named -- "Attn: Officer or Managing/General Agent" is sufficient) (further note: arguably the address designated on the proof of claim supersedes any requirement to address an officer or managing/general agent; but the issue is not free from doubt so the debtor is directed to serve the creditor using both forms of address: with and without the quoted phrase above); and
to Buckley Madole, purported counsel for Nationstar Mortgage LLC ("Nationstar") from whom the debtor has allegedly received multiple communications regarding Nationstar's alleged foreclosure efforts (note: again, arguably this additional notice is not required, but in the circumstances the tentative ruling is to require that the debtor use all three separate forms of notice).
Evidence. The debtor's motion is unsupported by any evidence, despite the reference in the motion to an accompanying declaration of the debtor (dkt. 195, p.4:7). This court is not inclined to grant the motion absent some supporting evidence of the purported actions of Nationstar and the damages allegedly suffered by the debtor. In addition, the motion does not specify the
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actual dollar amounts of various types of damages that the debtor requests, and to provide proper notice the motion should specify such damages.
Caveat. If the foregoing deficiencies are cured, the motion appears to provide appropriate legal authority for damages of various types, and Nationstar is cautioned that disregarding the motion may result in an award of damages.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Debtor(s):
Jeffrey Mark Freeman Represented By Shai S Oved
James D. Hornbuckle
Movant(s):
Jeffrey Mark Freeman Represented By Shai S Oved Shai S Oved Shai S Oved
James D. Hornbuckle James D. Hornbuckle James D. Hornbuckle
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Cont'd hrg re: Objection to Claim Number 7 by Claimant Capital One Bank (USA), N.A. by American Infosource LP as Agent
fr. 1/11/18, 02/08/18
Docket 154
Tentative Ruling for 3/8/18:
Deny the motion (overrule the claim objection) based on the creditor's opposition (dkt. 193) and amended proof of claim (no. 7-2) (which were filed after this Court was persuaded at the hearing on 2/8/18 to continue this matter for such documentation). Appearances are not required.
Proposed order: Creditor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/8/18:
Grant the motion (sustain the claim objection). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Continue to 2/8/18 at 8:30 a.m., subject to the same conditions and requirements set forth for calendar no. 13 (1/11/18 at 8:30 a.m.), or deny if the debtor cannot meet those conditions. Appearances are not required on 1/11/18.
Key documents reviewed: amended claim (no. 7-2), debtor's reply (dkt. 154).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jacqueline Beoglyan Represented By Thomas B Ure
Movant(s):
Jacqueline Beoglyan Represented By Thomas B Ure Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 02/08/18
Docket 53
Tentative Ruling for 3/8/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether the latest motion to modify the plan (dkt. 60) moots this motion (dkt. 53) and the response by the Chapter 13 Trustee (dkt. 55).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/8/18:
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 55).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Glory Edukere Represented By David R Chase
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 01/11/18, 02/08/18
Docket 72
Tentative Ruling for 3/8/18 (same as for 2/8/18 and 1/11/18 except encouraging telephonic appearances):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"), absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 73).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Walker Kerr Represented By Thomas B Ure
Movant(s):
Michael Walker Kerr Represented By Thomas B Ure
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 1/11/18, 02/08/18
Docket 85
Revised Tentative Ruling for 3/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court is inclined to grant the debtor's request for a continuance on shortened notice (dkt. 110, p.2:17-19) for service of an amended motion substituting a new purchaser for the one who has withdrawn, but believes that it is appropriate first to address the following issues with the parties. The tentative ruling is to set a continued hearing for 3/20/18 at 8:30 a.m., with a deadline of 3/9/18 to file and serve an amended motion via U.S. mail, which must include a notice that opposition papers are due by 3/19/18 at noon, and any reply may be presented orally at the hearing. Meanwhile the parties should be prepared to address the following issues.
IRS. The IRS has objected (dkt. 103) to one of the prior versions of the debtor's motion (dkt. 102). That objection appears to be largely still relevant to the more recent versions of the debtor's motion (dkt. 105, 108) as well as the anticipated amended motion with a new buyer. Accordingly, it seems appropriate to address some of the issues raised by the IRS, at least on a preliminary basis.
The IRS objects (dkt. 103, pp.1:26-3:27) to the debtor's method of service (see also tentative ruling for 2/8/18, item "(2)"). Rather than deciding whether the address listed on the proof of service does or does not supersede the addresses that would otherwise be required, this Court anticipates that counsel for the debtor will serve the IRS with the amended motion at all addresses listed in the IRS' objection (including the address of its attorneys listed at the top of that objection), thereby mooting the issue.
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The IRS also objects (dkt. 103, p.4:1-17) that there is insufficient
evidence that the proposed sale is for the highest and best price. This Court notes that the more recent versions of the motion appear to include evidence of marketing by a licensed real estate broker and appear to contemplate overbidding at the hearing, which may resolve the IRS' objection. If this issue is still relevant under the amended motion, the IRS can renew its objection.
The IRS also objects (dkt. 103, pp.4:18-6:3) that its liens must be paid in full. The IRS distinguishes In re Jolan, 403 B.R. 866 (Bankr. W.D. Wash. 2009), relying on In re Hassen Imports P'ship, 502 B.R. 851 (C.D. Cal. 2013). Again, if the IRS wishes, it can renew this objection.
Wells Fargo. This Court presumes that the debtor has no objection to including the language requested by Wells Fargo (dkt. 96, p.2, para.3) in any order granting the motion. If the debtor does object, that must be raised at this hearing.
Service on Los Angeles Federal Credit Union ("LA FCU") and Bureaus Investment Group Portfolio No. 15, LLC ("Bureaus"). The address listed on the proof of service (dkt. 108) for LA FCU does not match the most recent address designated by LA FCU on its proof of claim (see claim no. 9). The address listed on the proof of service for Bureaus does not identify Steven Pickett, the individual identified as the agent for service of process on the California Secretary of State's website.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/8/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/8/18:
Continue to 3/8/18 at 8:30 AM for corrected service on the junior lienholders,
8:30 AM
and clarification of certain ambiguities, all as set forth below. Appearances are required by debtor's counsel on 2/8/18.
Key documents reviewed (in addition to motion papers): IRS's Opposition (dkt. 103).
Background
The debtor's original motion (dkt. 85) did not ask for authority to sell free and clear of liens under 11 U.S.C. 363(f), although it appeared to seek such relief. The Chapter 13 Trustee responded, among other things, "it is not clear if all lienholders have agreed to such a sale." Dkt. 89. (The senior lienholder, Wells Fargo, also filed a conditional non-opposition, dkt. 96.)
The debtor has now filed an amended motion (dkt. 102) which seeks authority to sell free and clear of liens under 11 U.S.C. 363(f). The debtor does not have any specific sale arranged, although the debtor hopes to sell the property for something in the range of $1 million, which apparently is above the dollar amount owed to senior lienholder Wells Fargo but well below the dollar amount sufficient to pay the junior liens on the property.
The motion appears to be seeking authorization for sale procedures. In addition, the motion appears to be seeking either (a) pre-authorization to sell for whatever price the debtor might obtain (which this court tentatively is not prepared to grant) or, alternatively, (b) a subsequent motion and/or hearing to approve whatever proposed sale the debtor actually negotiates (which is a procedure that this court is inclined to approve, subject to the issues noted below).
Service
Service on the junior lienholders does not appear to comply with the applicable rules. For example, Rules 2002(g) and 7004(b)(3) (Fed. R. Bankr. P.) generally require service at the most recent address designated by the creditor (typically in a proof of claim) or, if no such address has been designated, then organizations typically must be served "Attn: Officer or Managing/General Agent" or the like, at an address reasonably calculated to reach that person (e.g., corporate headquarters, rather than a P.O. Box used for payments). Service on attorneys who have represented a creditor outside of the bankruptcy case is inadequate. See In re Villar, 317 B.R. 88 (9th Cir. BAP 2004). FDIC-insured institutions must be served via certified mail, per
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Rule 7004(h).
Similarly, service on the Internal Revenue Service ("IRS") usually must comply with Rule 7004(b)(5) (the Court Manual includes instructions and addresses for such service). The rules are not entirely clear, but that may be superseded by the address designated by the IRS in its proof of claim, although that does not help because the debtor has not used that address.
See Claim 2-1, p.1, under "Where should notices to the creditor be sent?"
The debtor must re-serve the motion in compliance with the applicable rules for service. That motion must be accompanied by a notice of the continued hearing date (with the standard deadline for any opposition) and a notice clarifying the ambiguities noted below.
Ambiguities
Proposed use of proceeds
The debtor calculates, based on a hypothetical sale price of $1 million, that after paying Wells Fargo's senior debt, real estate taxes, and costs of sale, there will be a remaining balance of roughly $135,000 "for the benefit of creditors." Dkt. 102, p.6:27-28. It is not clear what the debtor means by this.
Typically a sale "free and clear" of liens and other interests under section 363(f) provides for net proceeds to be held in a segregated account and with all remaining liens to attach to those proceeds pending further order of the court, with the same priority, validity, and dollar amounts as those liens had attached to the original collateral. The typical benefit to the debtor and the bankruptcy estate of using this procedure, instead of simply paying the liens out of escrow, is that (i) the sale will not be delayed by any dispute as to the priority, validity, or dollar amount of any lien, or by litigation to avoid one or more liens under 11 U.S.C. 522(f), 547, or on other grounds, and (ii) if the debtor can provide adequate protection of the junior liens then the debtor might be able to use the funds in a way that ultimately will result in a net benefit to all parties - such as repairing a roof on rental property that will assure more rental income, or investing in a business that will generate more revenues.
It appears that the debtor might intend to pay liens, in their order of priority, "directly from escrow" (dkt. 102, p.9:17), or at least provide the Chapter 13 Trustee with discretion to do so (id., p.9:1-6), so perhaps there will be no need to hold net proceeds in a segregated account. In any event, the debtor should clarify what is intended by proposing to use the projected
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$135,000 "for the benefit of creditors." (If the debtor intends something different from the options outlined above then the debtor must say so; but what the debtor cannot do is to simply use the $135,000 for personal reasons, or distribute it to unsecured creditors, because then the debtor would be ignoring the secured claim(s) held by junior lienholder(s).)
Approval of actual sale
As noted in the "Background" section of this tentative ruling, it is not clear if the debtor intends for this court to pre-authorize whatever sale the debtor might negotiate, but this court is not inclined to grant such a pre- authorization. On the other hand, this court is inclined to approve a two step process: first authorizing the sale procedures set forth in the motion (dkt.
, as clarified above, and second authorizing the debtor to provide notice to creditors of the actual sale price and other terms (once a sale is negotiated) pursuant to the usual procedures for sales of property in chapter 13 cases in this district. If the debtor seeks any special procedures, such as shortened time, then the debtor should make that clear in the motion papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Appearances required. This matter was set for hearing based on the Chapter 13 Trustee's objection (dkt. 89) that, among other things, "it is not clear if all lienholders have agreed to such a sale." One lienholder (apparently the senior lienholder who will be paid in full) has filed a conditional non-opposition (dkt. 96), but what about the other lienholders? The motion does not request any sale free and clear of liens under 11 U.S.C. 363(f), nor does the motion address the elements of that statute. Does the debtor intend to amend the motion to seek such relief?
If appearances are not required at the start of this tentative ruling but you
8:30 AM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Donnicus L Cook Represented By Vernon R Yancy
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 61
Deny as moot because the issues raised both by the motion and by the opposition (dkt. 64) concerning finalization of the loan modification appear to have been mooted in view of this court's order (dkt. 77) granting the debtor's motion (dkt. 66) for authorization to enter into loan modification.
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jay C Shin Represented By
Thomas B Ure
Movant(s):
Jay C Shin Represented By
Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
8:30 AM
fr. 02/08/18
Docket 63
Tentative Ruling for 3/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"), absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 65).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/8/18:
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 65).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
8:30 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jay C Shin Represented By
Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
of claim of CSS, INC. [claim #10 on court's claims register]
Docket 59
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Vera Sylvia Mallet Represented By Brad Weil
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 12/07/17, 02/08/18
Docket 42
- NONE LISTED -
Debtor(s):
Eva Anderson Represented By Andre A Khansari
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 1/11/18, 02/08/18
Docket 28
Debtor(s):
Charles W Martin Represented By Sundee M Teeple Craig K Streed Cynthia L Gibson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 1/11/18, 02/08/18
Docket 24
Debtor(s):
Charles W Martin Represented By Sundee M Teeple Craig K Streed Cynthia L Gibson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 9/14/17, 10/5/17, 12/7/17, 02/08/18
Docket 32
Tentative Ruling for 3/6/18:
Take matter off calendar as moot. Appearances are not required.
On 3/2/18, the parties filed a stipulation resolving the debtor's claim objection (dkt. 64, 65). The tentative ruling is to take the matter off-calendar as moot.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/8/18 (same as for 12/7/17):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to inform this court about the status of the court ordered mediation.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Revised Tentative Ruling for 10/5/17:
Appearances required. This court is prepared to give a detailed oral ruling, but before doing so this court wishes to address some preliminary issues with counsel for both parties, including (a) whether there is any problem that might arise due to the fact that the debtor's husband is not part of this proceeding and (b) whether there are any problem that might arise from the fact that there was - and perhaps still is - an action in nonbankruptcy court that apparently was never finished.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/5/17:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Terica Amber Roberts Represented By Dheeraj K Singhal
Movant(s):
Terica Amber Roberts Represented By Dheeraj K Singhal Dheeraj K Singhal
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 10/5/17, 12/7/17
Docket 91
Tentative Ruling for 3/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
On 11/30/17, this court assigned the matter to the Bankruptcy Mediation Program and appointed mediator and alternate mediator by an order of the Court (dkt. 103). On 12/7/17, this court continued the matter for the parties to engage in the Court-ordered mediation. There is no tentative ruling, but the parties should be prepared to address the status of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
On 11/30/17, this court assigned the matter to the Bankruptcy Mediation Program and appointed mediator and alternate mediator by an order of the Court (dkt. 103). There is no tentative ruling, but the parties should be prepared to update the court on the status of this case.
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/5/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the legal and factual disputes in their papers (dkt. 91- 100).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Manuel Madrid Munoz Represented By Leonard Pena
Joint Debtor(s):
Vilma Yolanda Madrid Represented By Leonard Pena
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 12/7/17, 1/11/18
Docket 38
Tentative Ruling for 3/8/18:
Continue to 5/3/18 at 8:30 a.m. per the debtor's request for more time to finalize a loan modification and/or pursue mediation with the claimant (see dkt. 54). Appearances are not required on 3/8/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 12/7/17 hearing on this matter, this court was persuaded to continue this matter. What is the current status of this matter?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
8:30 AM
appropriate for disposition at this hearing.
Tentative Ruling for 12/7/17:
Deny for the reasons stated in the Opposition (dkt. 46). If the debtor wishes to obtain more discovery regarding older records, she can seek such discovery using the normal procedures for doing so (subject to the normal limitations on any discovery). Appearances are not required.
Note: Counsel did not comply with the Local Bankruptcy Rules' requirement to attach a copy of the proof of claim to the objection. Nor did counsel comply with Judge Bason's posted procedures (at www.cacb.uscourts.gov) requiring a cost/benefit analysis for any claim objection (although the nature of the claim, and the provisions of the debtor's latest amended plan, dkt. 37, suggest that the cost/benefit analysis is favorable to bringing any meritorious objection). In future, counsel should comply with those requirements.
Proposed order: Creditor National Funding, Inc. is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Xuri Worthing Webb Represented By Eliza Ghanooni
Movant(s):
Xuri Worthing Webb Represented By Eliza Ghanooni Eliza Ghanooni
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 1/11/18
Docket 21
Tentative Ruling for 3/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 1/11/18 hearing, this court continued the matter to provide the parties with an opportunity to engage in settlement negotiations. There is no tentative ruling, but the parties should be prepared to address the status of those negotiations and any other updates in this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following issues:
Valuation dispute
The parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers)
8:30 AM
as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
Settlement
The parties should address whether this court should continue this matter to provide the parties with an opportunity to engage in settlement negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anna Kusnier Represented By Julie J Villalobos
Movant(s):
Anna Kusnier Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 28
Tentative Ruling for 2/13/18 (same as for 12/5/17):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) the status of their negotiations, (b) whether the alleged arrears have been brought current, and/or (c) whether they will agree to the terms of an adequate protection order (see the debtor's response, the parties' prior stipulation to a continuance, and the order thereon, dkt. 30-33).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Blanca Illiana Murillo Represented By
Hale Andrew Antico
10:00 AM
Movant(s):
PENNYMAC LOAN SERVICES, Represented By
Ciro Mestres John D Schlotter Robert P Zahradka Jenelle C Arnold
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
1:00 PM
Docket 1
Debtor(s):
Dana Hollister Represented By David A Tilem
1:00 PM
Docket 5
Debtor(s):
Dana Hollister Represented By David A Tilem
11:00 AM
Adv#: 2:17-01203 Timothy J. Yoo, Chapter 7 Trustee v. Saldana et al
Declaratory Relief; and (4) Turnover of Property fr. 5/23/17, 8/22/17, 11/17/17, 1/9/18
Docket 1
Debtor(s):
Ramiro Saldana Represented By Jeffrey N Wishman J Scott Bovitz
Defendant(s):
Ramiro Saldana Represented By Jeffrey N Wishman
Ramon Saldana Represented By J Scott Bovitz
Plaintiff(s):
Timothy J. Yoo, Chapter 7 Trustee Represented By
Todd M Arnold
Trustee(s):
Timothy Yoo (TR) Represented By Todd M Arnold
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 74
- NONE LISTED -
Debtor(s):
Yolanda McCoy-Thomas Represented By Steven P Chang
Movant(s):
Nationstar Moprtgage, LLC as Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LV TOWER 52, LLC
vs DEBTOR
Docket 91
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Hossein Shirmohammadi Represented By Tony Forberg
Movant(s):
LV Tower 52, LLC Represented By Thomas R Mulally
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST, NA vs
DEBTOR
Docket 39
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Myrna O. Burton Represented By
David Samuel Shevitz
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 58
Grant in part, deny in part, and continue to 4/10/17 at 10:00 a.m., all as set forth below. Appearances required.
Background
The parties appear to agree that the debtor has made monthly payments of $3,698.51 (the normal amortizing principal and interest payments). Those payments were due on the first day of each month, and generally were paid a few days later. See dkt. 8, Ex.5 (movant's spreadsheet) and dkt. 61, Ex.A, & dkt. 62) (debtor's copies of cashier checks). The motion lists some late charges, attorney fees, and other items (dkt. 58, p.7, para.8), but those do not appear to have been included in the movant's spreadsheet (dkt. 58, Ex.5, at PDF pp.30-33), perhaps because the listed amounts are for prepetition periods. In any event, the core of the parties' disagreement appears to involve an escrow impound account to pay real estate taxes and property insurance premiums.
The debtor's assertions of "improper" escrow impounds are unpersuasive The debtor's declaration (dkt. 61, Tribelsky Decl., para.9, at PDF
p.7:24-28) asserts that the impound is "improper" and that the debtor has "struggled with [movant] Wells Fargo to have them end these impounds." The debtor also declares (dkt. 61, at PDF p.7:16-22) that there was an "improper increase" in monthly payments starting on March 1, 2016, which he believes was due to an escrow impound for taxes and insurance.
The debtor fails to explain why there is anything "improper" about requiring him to pay into an escrow for real estate taxes and insurance. The loan documents (dkt. 8, Ex.1, para.3, pp.4-5) require the debtor to make
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escrow payments for taxes and insurance premiums on the same date at the payments of principal and interest.
It is true that the movant apparently had not required escrow payments for some unspecified period prior to March 1, 2016. See Notice of Mortgage Payment Change (Official Form 410S1) (the "Change Notice"), filed 1/19/16 on the Claims Register, at PDF pp.5-6 (requiring monthly payments of
$351.96 commencing March 1, 2016). But if the debtor is asserting some sort of waiver that argument is unpersuasive. The Deed of Trust provides (dkt. 58, Ex.1, para.3, pp.4-5) that although the movant may waive the escrow requirement, the movant "may revoke the waiver as to any or all Escrow Items at any time" and then the debtor "shall pay" all escrow amounts.
The debtor apparently just ignored his obligation to pay escrow impound amounts. Instead he has presented evidence (dkt. 61, Ex.B, at PDF pp.38 et seq.) that he paid taxes directly to the tax authorities and insurance premiums directly to the insurers.
It appears that the movant must have credited the debtor's direct payments of taxes and insurance, because its Change Notice filed on 10/18/16 lists a low estimated "Starting balance" of $861.27 as of December 2016 (although that apparently assumes that the debtor would start making his required escrow payments). In any event, the movant''s Change Notice is prima facie evidence of the validity of this underlying calculation in support of its claim, and the debtor has not established that there is anything wrong with the movant's accounting included in its Change Notice filed on 10/18/16.
Similarly, by the time of the next Change Notice it appears that the movant must have once again credited the debtor's direct payments of taxes and insurance because, the escrow account projections ("Part 3") project a required "Starting balance" for March 2018 of only $762.96 (although, again, this appears to assume that the debtor will have made certain payments into the escrow account by the start of March 2018). In any event, the debtor has not shown that there is anything wrong with this supporting underlying documentation of the movant's claim.
Despite the deficiencies in the debtor's arguments and evidence, it appears that the motion itself fails to account for the debtor's direct payments of real estate taxes and insurance
The motion asserts (dkt. 58, p.9, para.12.c.) that the debtor was behind three payments of $4,053.45, for a total of $12,160.35, less a
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suspense account balance of $1,166.12, for a total of $10,994.23 as of approximately 12/12/18 (when the declaration in support of the motion was signed). But unlike the Change Notices the motion does not appear to give the debtor credit for direct payments of real estate taxes and insurance.
Based on the spreadsheet attached to the motion as Exhibit 5 (dkt. 58, at PDF pp.30-33), the alleged shortfall of $10,994.23 appears to be the cumulative sum of all the shortfalls between the $3,698.51 that the debtor was paying each month (the normal amortizing principal and interest payments) and the higher monthly amounts that he should have been paying in order to fund the escrow account. There are no entries in the spreadsheet that appear to reflect the debtor's direct payments of taxes and insurance.
Nor is it possible to rely on the latest Change Notice to determine precisely what the debtor owes. At first glance that Change Notice would appear to have current information because it was filed on 3/5/18, but it provides only a projected shortfall of $762.96 in the escrow account as of March 2018 (3/5/18 Charge Notice at PDF p.6, Part 3, end of first line). That projection probably is too low, because it appears to assume that part of the debtor's monthly payment is credited to the escrow account in January of 2018, and that the debtor will make some very substantial payments in February and March of 2018, and that the real estate taxes that are due in March of 2018 will be paid out of those escrow payments (see id., Part 4, 2d and 5th columns, rows for January, February, and March, including credits of
$1,281.90, $9,810.75, and $354.94, and debit of $1,612.38).
The bottom line is that although the movant has not established precisely what the debtor owes, it has established cause for some sort of relief from the automatic stay - namely, there is "cause" within the meaning of 11 U.S.C. 362(d)(1) in that the debtor has failed for many months to comply with his obligations to fund the escrow account, which exposes the movant to the risk that it will have to bear the cost if the debtor fails to pay real estate taxes or insurance (especially if the property were to be damaged or completely burn down). The required adequate protection is for the debtor to cure the deficiency in the escrow account over a reasonable period of time.
The latest Change Notice (filed 3/5/18) can be used as a starting point. It requires that the debtor pay $381.48 per month into the escrow account, in addition to his regular monthly payments of $3,698.51 on account of principal and interest, for total monthly payments of $4,079.99. The escrow payments may have to be adjusted (as noted above, the Change Notice appears to
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assume that the debtor will have made some very substantial payments by the start of March 2018), but this Court can set a schedule for such adjustment (see below).
Conclusion
The tentative ruling is to set a deadline of 4/1/18 for the debtor (a) to file evidence that he has paid the March 2018 real estate tax payment directly to the taxing authority and (b) to commence making monthly payments of
$381.48 into the escrow account, in addition to his regular monthly payments of $3,698.51 on account of principal and interest, for total monthly payments of $4,079.99.
In addition, the tentative ruling is to set a deadline of 4/1/18 for the movant to file a supplemental declaration showing a calculation of the required escrow balance as of 5/1/18, the required monthly payments for the debtor to cure the deficiency in that escrow balance, and the resulting new total monthly payment that the debtor will have to pay on 5/1/18 and each month thereafter.
Finally, the tentative ruling is to set a continued hearing at the date and time set forth at the start of this tentative ruling, so that the parties and this Court can address what to do if the debtor disputes the movant's calculations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Boaz Tribelsky Represented By Michael F Chekian
Movant(s):
U.S. Bank National Association, as Represented By
Dane W Exnowski
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HILTON RESORTS CORPORATION
vs DEBTOR
Docket 96
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Oswaldo Barba Represented By
James D. Hornbuckle
Joint Debtor(s):
Jeanne Teran Represented By
James D. Hornbuckle
Movant(s):
Hilton Resorts Corporation Represented By Thomas R Mulally
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA.
vs DEBTOR
Docket 37
- NONE LISTED -
Debtor(s):
Cathy Renae Johnson Represented By
Rabin J Pournazarian
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 34
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodney Dean McKinney Represented By Kevin T Simon
Movant(s):
U.S. Bank National Association Represented By Jenelle C Arnold Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICAN FIRST CREDIT UNION
vs DEBTOR
Docket 30
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Cesar E. Hernandez Represented By
James D. Hornbuckle
Joint Debtor(s):
Patricia C. Hernandez Represented By
James D. Hornbuckle
Movant(s):
American First Credit Union Represented By James R Selth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 31
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 34).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Everett Fred Sanchez Represented By Thomas B Ure
Movant(s):
Wells Fargo Bank, N.A. Represented By Darlene C Vigil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MUFG UNION BANK, N.A.
vs DEBTOR
Docket 42
Debtor(s):
Felisa Dee Richards Represented By Eliza Ghanooni
Movant(s):
MUFG Union Bank, N.A., fka Represented By Drew A Callahan
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 28
- NONE LISTED -
Debtor(s):
Donald S Hirano Represented By Axel H Richter
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 54
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
10:00 AM
possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eurenie Fahmy Pro Se
Movant(s):
The Bank of New York Mellon fka Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CITIZENS BUSINESS BANK
vs DEBTOR
Docket 16
- NONE LISTED -
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
Movant(s):
Citizens Business Bank Represented By Reed S Waddell
Gerrick Warrington
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 38
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Genaro Lopez Represented By
David Samuel Shevitz
Joint Debtor(s):
Martha Lopez Represented By
David Samuel Shevitz
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 33
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jasper Andrew Perrin Represented By Thomas B Ure
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 35
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jason Richard Fontes Represented By Mark T Young
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
VEROS CREDIT, LLC
vs DEBTOR
Docket 52
- NONE LISTED -
Debtor(s):
Carlos Trejo Represented By
Andy C Warshaw
Joint Debtor(s):
Janet Trejo Represented By
Andy C Warshaw
Movant(s):
Veros Credit, LLC Represented By Robert M Tennant
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CARFINANCE CAPITAL
vs DEBTOR
Docket 41
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Teresa Polanco Segura Represented By Anthony B Vigil
Movant(s):
Carfinance Capital Represented By
Michael D Vanlochem
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 32
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jon Paul Jimenez Represented By Michael E Clark Barry E Borowitz
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SANTANDER CONSUMER USA, INC.
vs DEBTOR
Docket 31
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
JASON L. GAUDY
vs DEBTOR
Docket 21
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's opposition (dkt. 23).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gene Hernandez Represented By Nicholas M Wajda
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LEA TEDTOWE
vs DEBTOR
Docket 35
Grant in part and continue in part to 4/10/18 at 10:00 a.m. as set forth below. Appearances are not required on 3/20/18.
The automatic stay does not apply.
This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property
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(sometimes referred to in the mortgage context as the "original borrower"). Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: Kari Moulthrop and Jason Waltrip.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robert Garviria Pro Se
10:00 AM
Joint Debtor(s):
Adriana Juarez Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
LEA TEDROWE, TRUSTEE OF THE
1995 LEA L. TEDROWE REVOCABLE TRUST
vs DEBTOR
Docket 22
Grant in part and continue in part to 4/10/18 at 10:00 a.m. as set forth below. Appearances are not required on 3/20/18.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower").
Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process
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generally). In this matter, such persons appear to include: Kari Moulthrop and Jason Waltrip.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ana M Cabrera Pro Se
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
Docket 12
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gerald Edward Young Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
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or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 9
Grant, subject to the following conditions, also subject to any opposition at the hearing, and also subject to Debtor's counsel not charging for appearing at this hearing because he would not have needed to appear were it not for the fact that creditors may have been misled by the notice, which incorrectly states that oppositions were due 14 days prior to the hearing even though the notice was only served via US mail 15 days before the hearing. Appearances required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kelvin Lamar Shelton Sr. Represented By Ali R Nader
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 190
- NONE LISTED -
Debtor(s):
Rodney Edward Donkin Jr Represented By Louis J Esbin
Movant(s):
Wells Fargo Bank, N.A. as Trustee Represented By
Robert P Zahradka Tina R Lyons
Gagan G Vaideeswaran Joseph C Delmotte
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST, NA vs
DEBTOR
Docket 63
Debtor(s):
Javier Ruvalcaba Represented By Omero Banuelos
Joint Debtor(s):
Sonya Therese Ruvalcaba Represented By Omero Banuelos
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Merdaud Jafarnia Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FCI LENDER SERVICES, INC.
vs DEBTOR
Docket 37
Debtor(s):
Marco Murrieta Represented By Luis G Torres
Movant(s):
FCI Lender Services, Inc., servicing Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 18
Tentative Ruling for 3/20/18:
Appearances required. At the hearing on 3/6/18, this court continued the matter, at the parties request, to allow time for the debtor's sale of the property to close. There is no tentative ruling, but the parties should be prepared to update this court on the status of the sale.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Take off calendar, in view of this court's order (dkt. 32, para 14) granting the debtor's motion to commence loan modification program, without prejudice to the movant self-calendaring this motion again if the loan modification program is terminated without a consensual loan modification. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether they will agree to a continuance for a short sale and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 21).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis Arturo Zelaya Represented By Steven A Alpert
Movant(s):
HSBC Bank USA, National Represented By Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 172
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Summer Joy Lake Represented By Veronica T Barton
Movant(s):
Wesley H Avery (TR) Represented By David M Goodrich
Trustee(s):
Wesley H Avery (TR) Represented By David M Goodrich
11:00 AM
U.S.C. § 363(m); and (5) Authorizing Trustee to Distribute Net Sale Proceeds in Accordance with Priorities and Distribution Scheme in 11 U.S.C. § 726, Except That Any Surplus Shall Be Distributed to the Shriners Hospitals for Children
Docket 61
Grant, subject to any overbids at the hearing (and, if any overbidder becomes the purchaser, further subject to their declaration(s) sufficient to support any good faith finding under 11 U.S.C. 363(m)). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Movant(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
Adv#: 2:18-01025 Clarke v. Aouragh
Docket 3
Grant for the reasons stated in the motion and reply papers (dkt. 3. 4 & 7). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Note regarding service. Service of the motion on the plaintiff/debtor was defective; but the plaintiff/debtor's opposition (dkt. 6) did not raise that issue, so it is waived/forfeited.
The defect is service is that service on a debtor must be via service on both the debtor's counsel and the debtor individually ("double service"), as required by Fed. R. Bankr. P. 7004(b)(9) and (g). This court has neither the authority nor the inclination to excuse non-compliance with these rules. It is true that this double service requirement is the exact opposite of typical non- bankruptcy practice, in which it is generally impermissible to serve a represented party personally; but there are good reasons for the double service rule in bankruptcy. It helps protect the debtor and the bankruptcy estate (i.e., all parties in interest) from matters "falling through the cracks" given the high volume and speed of matters in typical bankruptcy cases, and the frequent use of service via U.S. mail.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bianca L. Clarke Represented By
D Justin Harelik
Defendant(s):
Amir Aouragh Represented By Kathleen P March
Movant(s):
Amir Aouragh Represented By Kathleen P March
Plaintiff(s):
Bianca L. Clarke Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:17-01485 Gonzalez v. Macmillan et al
Docket 14
See the tentative ruling for the status conference in this adversary proceeding (calendar no. 5, 3/20/18 at 11:00 a.m.).
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Movant(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By
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James A Dumas Jr
11:00 AM
Adv#: 2:17-01485 Gonzalez v. Macmillan et al
Docket 1
Revised Tentative Ruling for 3/20/18:
Appearances required.
Motion for summary judgment (adv. dkt. 14-18, the "MSJ"); opposition papers (adv. dkt. 22-25); and reply papers (adv. dkt. 26-27). The tentative ruling is to deny in part and grant in part the MSJ, as set forth below.
Legal standards. The legal standards governing motions for summary judgment are well known, do not appear to be disputed by the parties, and need not be repeated in this tentative ruling.
First claim for relief (fraudulent transfer). Although the complaint (adv. dkt.1) asserts fraudulent transfer claims under both California law and the Bankruptcy Code, the MSJ limits this to 11 U.S.C. 548. The MSJ also asserts only constructive, not actual, fraud. See adv. dkt. 14, pp.2:21-3:1.
The complaint alleges less than reasonably equivalent value (11
U.S.C. 548(a)(1)(B)(i)) - namely, transfers by the debtors/defendants for no value from the debtors and/or their revocable trusts (the assets of which apparently could be reached by creditors) to irrevocable trusts. But to establish the elements of a constructively fraudulent transfer the plaintiff must also establish one of three types of insolvency (commonly referred to as "balance sheet," "inadequate capital," or "cash flow" insolvency) or else a transfer to an insider under an "employment contract." See 11 U.S.C. 548(a) (1)(B)(ii)(I)-(IV). There is no allegation about any employment contract, so the plaintiff must establish some type of insolvency.
The MSJ refers to balance sheet insolvency (11 U.S.C. 101(32A)). But
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the complaint never alleges that type of insolvency, so the plaintiff cannot be granted partial summary judgment as to that element (11 U.S.C. 548(a)(1)(B) (ii)(I)).
The complaint alleges inadequate capital and inadequate cash flow (in language that roughly parallels 11 U.S.C. 548(a)(1)(B)(ii)(II)&(III)). But the MSJ extrapolates that those types of insolvency could be presumed based on the bankruptcy schedules many months after the transfer, and from the sheer number of lawsuits and eventual judgments against the defendants and other circumstantial evidence. Those things might (or might not) be persuasive at trial, but they are insufficient to establish a lack of genuine issue of fact.
Second claim for relief (declaratory relief related to nature of the trusts). The complaint (adv. dkt. 1, para. 23) seeks a declaratory judgment (i) that the debtors/defendants are "beneficiaries" of the trusts within the meaning of California Probate Code 15304, (ii) that the benefits the debtors/defendants receive from the trusts are "property of the estate" under 11 U.S.C. 541, and (iii) that the trusts qualify as "self-settled trusts" under California law, which the MSJ uses as shorthand for a trust the assets of which are reachable by creditors.
Various provisions of the Bankruptcy Code define what property is part of the bankruptcy estate:
The bankruptcy estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). It does not include, however, "any power that the debtor may exercise solely for the benefit of another," 11
U.S.C. § 541(b)(1), nor does it include "[p]roperty in which the debtor holds ... only legal title and not an equitable interest." 11
U.S.C. § 541(d). Similarly, the estate does not include property containing "[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law." 11 U.S.C. § 541(c)(2). [In re Cutter, 398 B.R. 6, 18-19 (9th Cir. BAP 2008).]
Under California law:
If the settlor is a beneficiary of a trust created by the settlor and the settlor’s interest is subject to a provision restraining the voluntary or involuntary transfer of the settlor’s interest, the restraint is invalid against transferees or creditors of the settlor.
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The invalidity of the restraint on transfer does not affect the validity of the trust.
If the settlor is the beneficiary of a trust created by the settlor and the trust instrument provides that the trustee shall pay income or principal or both for the education or support of the beneficiary or gives the trustee discretion to determine the amount of income or principal or both to be paid to or for the benefit of the settlor, a transferee or creditor of the settlor may reach the maximum amount that the trustee could pay to or for
the benefit of the settlor under the trust instrument, not exceeding the amount of the settlor’s proportionate contribution to the trust. [California Probate Code 15304]
The California Supreme Court has held that to the extent that the settlor of a trust is also a beneficiary, creditors can reach the property held by the trust:
It is against public policy to permit a man to tie up his property in such a way that he can enjoy it but prevent his creditors from reaching it, and where the settlor makes himself a beneficiary of a trust any restraints in the instrument on the involuntary alienation of his interest are invalid and ineffective. Since [the settlor] was the sole beneficiary, all the property in the trust is subject to the claims of his creditors. [Nelson v. Cal. Trust Co., 33 Cal.2d 501, 501-02 (1949) (emphasis added)]
These principles have been more recently reaffirmed in a decision of the Ninth Circuit Court of Appeals:
[U]nder California law, a settlor of a spendthrift trust cannot also act as beneficiary of that trust (i.e., California law prohibits "self-settled" trusts). See Cal. Prob.Code § 15304(a) (West 1987). California law voids self-settled trusts to prevent individuals from placing their property beyond the reach of their creditors while at the same time still reaping the bounties of such property. See Nelson v. California Trust Co., 33 Cal.2d 501, 202 P.2d 1021,
1021 (Cal. 1949). [In re Moses, 167 F.3d 470, 473 (9th Cir.
1999)]
In addition, the MSJ cites authority that if beneficiaries exercise "excessive" control over a trust then under California law they cannot "shield that trust with an anti-alienation provision lacking true substance." In re
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Moses, 167 F.3d 470, 473 (9th Cir. 1999) (citation omitted) (emphasis added). See also In re Cutter, 398 B.R. 6, 22 (9th Cir. BAP 2008). MSJ (adv. dkt. 14, p.10:1-14).
The debtors argue that their situation is different from that in Cutter because "the Debtor in Cutter could potentially use all the Trust's principal and income to maintain his standard of living, without limitation" whereas "[t] here is no such provision" in the debtors' trusts. Dkt. 22, p.3:22-26 (italics added to case name). That distinction of Cutter (and the other authorities cited above) is unpersuasive.
The MSJ points to the following facts in support of its argument that (i) the debtors are also beneficiaries and (ii) the anti-alienation provisions of the trust lack "true substance." The debtor/defendants do not raise any genuine contrary issues of fact.
The debtors deducted mortgage interest and real estate taxes on their 2015 tax returns. See dkt. 18, p.4:5-9 (and evidence cited therein).
During the "initial period" of the trusts (the earlier of the grantors' deaths or 16 years) the debtors can continue to live in the property rent-free. See Dkt. 18, p.4:10-15 (and evidence cited therein).
During that same period, any net income or excess cash is distributed to the debtors. See Dkt. 18, p.4:16-21 (and evidence cited therein).
The debtors can manage the property as "absolute owners."
See Dkt. 18, p.4:22-28 (and evidence cited therein).
The debtors can loan money to themselves and/or use the property to secure loans to themselves. See Dkt. 18, p.5:2-7 (and evidence cited therein).
During their lifetime, the debtors can make discretionary distributions to their children, and upon their deaths the trust assets are to be distributed to their children. See Dkt. 18, p.5:8-12 (and evidence cited therein).
Based on the foregoing, it appears that the debtors are indeed beneficiaries of the trusts to a large extent, and moreover the anti-alienation provisions of the trust lack "true substance" as that term has been used in the cited authorities. Accordingly, the tentative ruling is to grant the MSJ on the second claim for relief.
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Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20). The parties should be prepared to address whether there are any non- mooted matters left to resolve in this adversary proceeding, if this Court is not persuaded to depart from the foregoing tentative ruling on the MSJ.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/13/18:
Continue this status conference to be concurrent with the hearing on the pending summary judgment motion, which is presently scheduled for 3/20/18 at 11:00 a.m. Appearances are not required on 2/13/18.
This court has reviewed the parties' late-filed joint status report (adv. dkt. 10, 11) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (at the hearing on 12/5/17). See also adv. dkt. 10, 11.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 5) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
This court recognizes that, at least at this stage, the attorney who filed the answer (dkt. 4) for both trustees of the trust has also executed the Status Report (dkt. 5) on behalf of one of the defendant trustees (the debtor/defendant) asserting that neither of them can consent to this Bankruptcy Court entering a final judgment because third party beneficiaries of the trust allegedly have a right to have their rights litigated "outside of this venue." Counsel for the answering defendants should be prepared (a) to explain whether this is a Stern objection or something else and (b) whether both answering defendants or only one of them takes this position, and if the former, why he did not execute the status report on behalf of both of them.
Counsel for the plaintiff should be prepared to address whether the plaintiff contends that there are no additional parties who need to be joined,
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and why.
Mediation. The plaintiff suggests in the Status Report (adv. dkt. 5) that mediation, if any, should not be ordered before dispositive motion(s) are heard, which the plaintiff anticipates will be by 3/1/18. The tentative ruling is to revisit the issue of mediation after that date.
Deadlines: This adversary proceeding has been pending since 9/26/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 3/1/18 Expert(s) - deadline for reports: 2/20/18
Expert(s) - discovery cutoff (if different from above): 3/1/18 Dispositive motions to be heard no later than: 3/13/18 Joint Status Report: 1/30/18
Continued status conference: 2/13/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 4/10/18 Pretrial conference: 4/17/18 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 4/19/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 4/23/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By
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Robert S Altagen Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Docket 5
Appearances required by counsel for the debtor and by the debtor(s) themselves. This court has reviewed the debtor's chapter 11 status report (dkt. 31) and all other filings in this case.
Current issues
Proposed bankruptcy counsel (dkt. 9, 30, 34, 45, 46). The debtor has now disclosed that the source of the prepetition retainer is Olympic Holdings, LLC ("Olympic"), the managing member of which is also the debtor's managing member, namely Mr. Mark Slotkin. The debtor has also clarified that although Olympic proposes to pay counsel's monthly bills as they come due (to be held in proposed counsel's client trust account until allowed), Olympic reserves the right to request reimbursement of prepetition payments as a general unsecured claim and postpetition payments as an administrative claim - would such postpetition request be on "substantial contribution" grounds? or on other grounds, such as an administrative priority loan (under 11 U.S.C. 364? without interest? with interest?)?
The foregoing facts and questions raise a host of ethical concerns. Any counsel who is paid by a third party (the "Funder") may be subject to conflicts of interest, especially if there are potential avoidance actions, reimbursement or contribution or indemnity claims, or other claims that could be investigated or brought against the Funder. At the hearing, proposed counsel must address the following.
Connections. What are all of the connections (as that term is used in FRBP 2014) among the Funder, the debtor, Mr. Slotkin, and proposed counsel? Are there any conflicts of interest, or potential conflicts? In the past, Judge Bason has followed authority holding that conflicts cannot be waived by a debtor in possession because it is representing the interests of creditors and has no authority to waive conflicts on creditors' behalf. In addition, to help in identifying all connections, Judge Bason's posted procedures require the use of Local Form 2014-1 (see those procedures at
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www.cacb.uscourts.gov for instructions how to fill out that form).
Terms. What are the precise understandings regarding the
funds?
Informed consent of Funder. Mr. Slotkin declares (dkt. 45,
para.5) that both he and Olympic understand that proposed counsel "does not represent us, and only represents the Debtor"? Have the members of Olympic (whoever they might be) been advised of this as well? Have all such persons been advised not only of representation issues but also attorney- client privilege issues, including what can happen if a trustee were to be appointed? Have all such persons been advised of duties of loyalty, whom counsel will continue to represent (if anyone) if a conflict develops, and other ethical and practical concerns? Who provided such advice: independent counsel, or the debtor's proposed counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing?
Other considerations. Has proposed counsel demonstrated or represented to this Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
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Continued status conference: concurrent with any other hearings in this case, and also on 5/1/18 at 2:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
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CITIZENS BUSINESS BANK
vs DEBTOR
Docket 16
Appearances required. There is no tentative ruling, but the parties should be prepared to address the merits of the motion and related papers, and whether they will agree to the terms of an adequate protection order or other resolution (see dkt. 16 & 32-43).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
Movant(s):
Citizens Business Bank Represented By Reed S Waddell
Gerrick Warrington
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Docket 13
Please see the tentative ruling for the status conference, calendar no. 4 at 1:00 p.m. 3/20/18.
Debtor(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
Movant(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
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Docket 12
Grant the motion (docket no. 12) on an interim basis, subject to the conditions set forth below, with a final hearing on 5/1/18 at 1:00 p.m., and deadlines of 4/3/18 for the movant to file and serve a notice of the final hearing, 4/10/18 for any opposition, and 4/17/18 for any reply. Appearances are not required on 3/20/18.
Service is inadequate. The proof of service (dkt. 12, pp. 12-13) fails to comply with the rules for service. Chase was not served via certified mail or to the attention of an officer as required by Rule 7004(b)(3) & (h) (Fed. R. Bankr. P.) (incorporated by Rule 9014(b), Fed. R. Bankr. P.).
Missing proposed form of order. The debtor failed to attach a proposed form of order pursuant to Rule 4001(b)(1)(A) (Fed. R. Bankr. P.). In future, counsel is directed to comply with this rule.
Missing mandatory form F 4001-2.STMT.FINANCE. The debtor failed to file the mandatory form F 4001-2.STMT.FINANCE. This court notes that counsel has failed to file this form in prior cases. Counsel is cautioned that failure to file this form in future cases may result in adverse consequences.
The debtor is directed to serve Chase in accordance with Rule 7003(b)(3) &
and file an amended proof of service by no later than 4/3/18. The debtor is also directed to file form F 4001-2.STMT.FINANCE by 4/3/18.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form F2081- 1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this
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tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation.
Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such
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liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506 (c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
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Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
Movant(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
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Docket 6
Appearances required by counsel for the debtor and by the debtor herself.
Current issues.
Cash Collateral Motion (dkt. 12). See the separate tentative ruling for that motion (calendar no. 4, 3/20/18 at 1:00 p.m.).
Budget Motion (dkt 13).
Service is inadequate. The proof of service (dkt. 13, pp. 5-6) fails to comply with the rules for service. Chase was not served via certified mail or to the attention of an officer as required by Rule 7004(b)(3) & (h) (Fed.
R. Bankr. P.) (incorporated by Rule 9014(b), Fed. R. Bankr. P.).
Unexplained Inconsistencies between Schedule J & Proposed Budget. The debtor should be prepared to address the issues raised in the United States Trustee's opposition (dkt.18).
Notice of continued hearings. If the court grants the budget and cash collateral motions on an interim basis, the tentative is to set a deadline of 4/3/18 for the debtor to file and serve a notice of the final hearing on both motions, and to set the same date for the debtor to file any supplement or amendments to such motions, with deadlines of 4/10/18 for any opposition and 4/17/18 for any reply.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 6/12/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference
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(but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/1/18 at 1:00 p.m. (to be concurrent with the hearings on cash collateral and budget motions), brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
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fr. 1/23/18, 02/13/18
Docket 59
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 7, 3/20/18 at 1:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference (calendar no. 8, 2/13/18 at 1:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 3, 1/23/18 at 1:00 p.m.).
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
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Docket 1
Tentative Ruling for 3/20/18:
Continue to 4/17/18 at 1:00 p.m. to be heard concurrently with the debtor's motion to allow late-filed ballot (dkt. 78). Appearances are not required on 3/20/18.
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that he lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18.
At the continued hearing on 2/13/18, the debtor stated that he reached a settlement with Wells Fargo regarding plan treatment and would be filing a motion to allow late-filed ballot. On 3/12/18, the debtor filed that motion (dkt. 78), with a hearing scheduled for 4/17/18.
Exit strategy. At the continued hearing on 4/17/18, if this Court does not approve the debtor's motion to accept late-filed ballot, the debtor should be prepared to address what his exit strategy from bankruptcy is and whether this case be dismissed.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 4/17/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that he lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18. That deadline has passed and, as of the preparation of this tentative ruling, no such papers have been filed.
Exit strategy. What is the debtor's strategy to exit from bankruptcy? Should this case be dismissed?
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 3/20/18 at 1:00 p.m. (if this case is not dismissed). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue this status conference and the combined hearing on final approval of the disclosure statement (dkt. 60) and confirmation of the plan (dkt. 59) to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtor's failure to file the ballot summary with respect to the plan, which was due on 1/16/18 (see Order, dkt. 61) and (b) the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the federal government.
At the continued hearing the debtor should be prepared to testify, or make an offer of proof, as to feasibility.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Income calculation. Exhibit C, Attachment 1, line 7, for income from "operations of business" requires the debtor to "attach detailed statement." No such statement appears to be provided.
Disputed claims and other prior issues appear to be adequately addressed. The revised Exhibit F (dkt. 58) lists the 16th Street Group twice: once for the undisputed portion and once for the disputed portion - if the dollar amount of the disputed portion of the claim is sufficient then this appears to fully address this court's concerns expressed in the tentative ruling
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for 11/7/17. All of this court's other concerns appear to have been fully addressed as well.
Feasibility. This court anticipates that the debtor may be required to testify, or make an offer of proof, as to feasibility at the combined hearing (set forth below) on final approval of the disclosure statement and confirmation of the plan.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: 12/15/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 2/27/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 54) and disclosure statement (dkt. 53)
Disputed claims. The plan contemplates non-payment to some disputed claims. Unless and until those claims are disallowed (or allowed),
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the debtor must establish a disputed claims reserve and pay into that reserve in order to confirm any plan.
General unsecured creditors. The plan includes a confusing mix of different listings of general unsecured creditors. Exhibit F starts with the total from the debtor's bankruptcy schedules and then reduces it by a dollar amount that appears to be random (there are no calculations to show how the debtor arrived at that reduction). Attached to Exhibit F is a copy of the debtor's bankruptcy schedules, but those are not manually marked up to show how the debtor arrived at the dollar amounts in Exhibit F.
Exhibit I lists not only general unsecured claims but also priority and secured claims, so it is not helpful to figure out how the debtor arrived at the dollar amount of reduction in Exhibit F.
Exhibit H item "(6)" lists anticipated/pending objections to claims, and provides what appear to be estimated dollar amounts, but there is no basis for such estimates and they are not tied to the reduction in total claims listed in Exhibit F.
It appears that the simpler solution would be (i) to use the "electronic option" in Exhibit F (starting at line 5) for general unsecured claims, instead of attaching the bankruptcy schedules, (ii) cut all unsecured claims from Exhibit I as redundant, and (iii) use a disputed claims reserve and/or obtain final orders disallowing or allowing claims and/or follow the proper procedures for claims estimation, if permissible (see 11 U.S.C. 502(c) and Rule 3018(a), Fed. R. Bankr. P.).
Tax claims. One tax claim has been withdrawn (dkt. 52). Is the tax claim listed in Exhibit A for "LACTTC" a different claim?
Pagination. The debtor's plan divides one-page exhibits onto two pages, which is somewhat confusing. The debtor may need to adjust the page margins to enable them to print on a single page.
Income calculation. Exhibit C, Attachment 1, lines 1 and 7, do not provide adequate disclosure of the debtor's income calculation. Line 1 is for "wages, salary, and commissions" but as an independent contractor the more appropriate line would appear to be line 7 for "operations of business," which requires the debtor to "attach detailed statement." In any event, the debtor cannot simply list net income without any disclosure as to the gross revenues, specific expenses, and calculation of that net income.
The debtor's failure to disclose sufficient information about revenues and expenses has been a recurring theme - see the tentative ruling for
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7/11/17 (reproduced below), item "(1)(a)" under the "Third" issue. Given this history, this court will require the debtor to file and serve on the U.S. Trustee, no later than the deadline set forth below for filing an amended plan and disclosure statement, a detailed declaration providing documentation as to the basis for each aspect of the income and expense projections (the debtor may incorporate Monthly Operating Reports by reference, but cannot rely only on those MORs - the debtor must provide additional support for his projections).
Double-counting of expenses. Exhibit C, Attachment 1, line 17, includes an adequate protection payment of $325.50/mo. (with a reference to "RFS Order Dkt No. 45"), but it appears that these adequate protection payments will be replaced by the payments in Class 1A of $383.28/mo. It appears that once the added $325.50/mo. is eliminated then the cash flow might be more feasible.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file "blacklined" versions by 11/21/17 (the spreadsheets probably will need to be manually blacklined) (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/12/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/12/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This court has no issues to raise sua sponte at this time.
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Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Appearances required by counsel for the debtor and by the debtor himself.
Current issues.
Budget motion (dkt. 21). This motion is not on for hearing, but in connection with this Status Conference the debtor should be prepared to address the following concerns.
First, the debtor lists $1,350/mo. in income derived from unemployment benefits, in addition to his $6,150/mo. in business income derived from his self-employment as an independent marketing consultant, a job at which he claims to have been employed for the past year. Dkt. 21, p.
8. How can the debtor obtain unemployment benefits when he is employed? How will the budget change when those benefits cease?
Second, the debtor lists net business income but has failed to provide a breakdown of gross receipts, ordinary and necessary business expenses, and calculation of the resulting monthly net income, as required by the instructions on bankruptcy Schedule "I" line 8a. See dkt. 21 at p. 8.
Third, the debtor asserts a 50% interest in a real estate business in Miami, Buena Vista Terminal, LLC. See dkt. 1, pp. 19, 51. What is the nature of that business? Does the debtor derive any income from that business?
Finally, the debtor reports that he has just $43.43 in monthly net income to contribute to a chapter 11 plan. But the debtor has two cars and a
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motorcyle and over $700/mo. in automobile payments (plus "transportation" costs). Is that reasonable? See In re Concoff (case no. 2:13-bk-37328-NB, dkt. 246).
Application to employ counsel (dkt. 24). Does the U.S. Trustee have any concerns about the proposed interim payment procedures and fee sharing arrangement between Ms. Ghanooni and Ms. Esmaili?
According to the retainer letter (dkt. 24, Ex. 3, para. 4) some of the retainer was to be paid by the debtor's mother, as a gift. But the application and the Rule 2014 disclosures by proposed counsel and by the debtor assert that there is no connection with any insider, and that all funds have come solely from the debtor. Which version of the facts is true? If any portion of the retainer has been paid by a third party, that raises special concerns (e.g., was the third party fully informed, in writing, that counsel represents the DIP not the third party, and might actually have to sue the third party if there were any potentially avoidable transfers? are there any such transfers or other potential conflicts?). See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D.
Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 9/22/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/15/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference, dkt. 8).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
1:00 PM
Docket 239
- NONE LISTED -
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Docket 240
- NONE LISTED -
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Docket 103
Please see the tentative ruling for the chapter 11 status conference (calendar no. 15, 3/20/18 at 1:00 p.m.).
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
Movant(s):
Clark Parker Pro Se
1:00 PM
Docket 101
Please see the tentative ruling for the chapter 11 status conference (calendar no. 15, 3/20/18 at 1:00 p.m.).
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
Movant(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
1:00 PM
Docket 71
Please see the tentative ruling for the chapter 11 status conference (calendar no. 15, 3/20/18 at 1:00 p.m.).
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
1:00 PM
CALIFORNIA BOARD OF EDUCATION
vs DEBTOR
Docket 48
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the chapter 11 status conference (calendar no. 15, 3/20/18 at 1:00 p.m.).
Tentative Ruling for 2/27/18:
Please see the tentative ruling for the chapter 11 status conference (calendar no. 6, 2/27/18 at 2:00 p.m.).
Revised Tentative Ruling for 12/12/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling is to continue the hearing to the same date as the continued status conference in this case (see calendar no. 3 on this 2:00 p.m. calendar) and meanwhile order the California Department of Education ("CDE"), the debtor, and the debtor's principal Dr. Curtis to mediation as further set forth below. For present purposes this court need not repeat the legal analysis set forth by the parties, or repeat their examination of each one of the (non-exclusive) Curtis factors. It is sufficient to address the most pertinent considerations.
On the one hand, the CDE has presented some powerful arguments in favor of relief from the automatic stay. In particular: (a) the OAH is a
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specialized forum, and the State Courts are at least as well equipped as this Bankruptcy Court, if not better, to determine the competing claims of OAH, the debtor, and any other parties to the nonbankruptcy litigation; (b) that litigation is at advanced stages; (c) the underlying issues appear to be non- core (in both the statutory sense, under 28 U.S.C. 157(b), and as that term has been used to describe the principles of the U.S. Constitution as interpreted by Stern v. Marshall, 131 S.Ct. 2594 (2011)); (d) mandatory or discretionary abstention probably would apply if this matter were to be before this Bankruptcy Court; (e) this case is predominantly (although not entirely) a two-party dispute; and (f) it is not at all clear that the debtor has any reasonable prospects for reorganization without the cooperation of the CDE.
On the other hand, the debtor has presented some persuasive arguments that it may be premature to grant relief at this time. In particular:
(g) the bankruptcy case is at its early stages; (h) the automatic stay's "breathing spell" exists to protect the (admittedly few) other creditors and also the debtor and other parties in interest, such as persons whose employment and other interests depend in part on the debtor's existence, including Dr. Parker; (i) regarding "the balance of hurt," the debtor has made a prima facie showing of significant harm to it and the estate if it is forced to continue expensive litigation at this stage, and the CDE has not established that it will be substantially damaged by a relatively short period in which the automatic stay continues, until the debtor's ability to reorganize can be explored; and (j) continuing with "the balance of hurt" analysis, it is not at all clear how much the CDE will be hurt if it cannot continue its litigation (at what may be considerable expense) against a debtor that might be effectively "judgment proof."
Balancing the competing considerations, the tentative ruling is that it is not appropriate to terminate the automatic stay at this time. This court could deny the motion without prejudice, but a continuance is administratively more convenient and may save the parties the expense of a renewed motion. (This court recognizes that, to the extent if any that 11 U.S.C. 362(e) applies, there are time limits on any continuance, but typically the moving party consents to waive those time limits rather than have their motion denied. If CDE does not consent, then it is directed to say so at the hearing.)
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At the continued hearing this court expects that the outcome may be
very different if the debtor has not generated a plan with a reasonable prospect of confirmation within a reasonable time, and/or resolution with CDE. In that regard, this court is concerned that the debtor's bankruptcy schedules (dkt. 14), monthly operating reports ("MORs," dkt. 42, 47), and status reports (dkt. 19, 51) appear to reflect a business that is depleting its cash and, unless it can reach an agreement with CDE, may have no realistic prospects for any reorganization.
This court is aware that debtors sometimes have other means of generating assets, such as recovery of fraudulent transfers. But the debtor has asserted in connection with the initial status conference that, notwithstanding the findings in connection with the CDE's audit, any allegedly avoidable transfers are likely to be largely if not entirely unrecoverable because most of them were for salaries, among other obstacles to any recovery (this court takes no position on any such assertion, but merely notes that according to the debtor it may have essentially no assets except for some limited cash that likely would be depleted in any future litigation, and nothing in the record presently before this court establishes otherwise).
In addition, in these circumstances this court's preliminary assessment is that the debtor and its principal, Dr. Parker, must take the initiative to present colorable proposals to CDE. Absent such proposals, this bankruptcy case may turn out to have been filed in bad faith (solely or predominanatly for purposes of delay and obstruction).
This court will be better able to assess the foregoing issues in the coming weeks and months, including but not limited to reviewing the debtor's proposed plan and disclosure statement that are due 2/2/18 (as orally ordered at the status conference on 10/17/17). Meanwhile, the tentative ruling is to order the parties to mediation under the following procedures.
First, under the circumstances of this case it appears appropriate to require that any expenses of mediation (e.g., travel expenses) be paid by the bankruptcy estate.
Second, it appears appropriate to set a deadline of 12/21/17 for the
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parties to lodge proposed order(s) assigning this matter to mediation (they are directed to use the time between now and then to attempt to agree on a proposed mediator and assure that the mediator will be available on a schedule that is consistent with the needs of this case). If the parties are unable to agree on a mediator then they may lodge separate proposed orders and this court will either choose one or issue its own order (this court always offers this alternative but no party has ever used it because parties who are acting in good faith ought to be able at least to agree on a non-binding mediator from the court's panel of experienced volunteers).
Third, the tentative ruling is that, if the CDE personnel involved prefer to conduct any meetings at or near their own offices, rather than in the Los Angeles area, then the debtor, Dr. Parker, and their counsel must travel to the CDE.
Fourth, the tentative ruling is that any mediation must be concluded by 1/26/18 (one week before the deadline for the debtor's draft plan and draft disclosure statement).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
Movant(s):
California Department of Education Represented By
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Matthew C. Heyn
1:00 PM
fr. 02/27/18
Docket 78
Please see the tentative ruling for the chapter 11 status conference (calendar no. 15, 3/20/18 at 1:00 p.m.).
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
Movant(s):
California Department of Education Represented By
Matthew C. Heyn
1:00 PM
Docket 6
Tentative Ruling for 3/20/18:
Appearances required.
Current issues. The parties should be prepared to address the following:
Motions to quash CDE subpoena (dkt. 101, 103).
Insider Compensation (dkt. 71, 75, 92, 108).
Motion for relief from the automatic stay (dkt. 48, 50).
Motion to dismiss (dkt. 78, 99).
Motion to convert to chapter 7 (dkt. 115, 117).
Deadlines/dates. This case was filed on 9/22/17.
Bar date: 12/29/17 (timely served, dkt. 38, 39).
Plan/Disclosure Statement*: TBD (probably moot in view of the debtor's request for conversion to chapter 7; the failed mediation; and the status of this case).
Continued status conference: If this case is not dismissed or converted, 4/17/18 at 1:00 p.m., brief status report due 4/3/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
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Continue to 3/20/18 at 1:00 p.m. (see Order, dkt. 110). Appearances are not required on 2/27/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 12/12/17:
Appearances required. The tentative ruling is:
to continue this Status Conference to 2/27/18 at 2:00 p.m., with a brief status report due 2/13/18;
to continue the hearing on the motion of the California Department of Education ("CDE") for relief from the automatic stay (dkt. 48) to the same time, and meanwhile to order the parties to mediation (all as more fully set forth in the tentative ruling for calendar no. 1 on this 2:00 p.m. calendar); and
to grant in part the debtor's emergency motion to enforce the automatic stay (dkt. 20), on a final basis, by ruling (a) that the stay does apply, but (b) that the debtor has not established any damages nor that any damages that might exist are recoverable (cf. 11 U.S.C. 362(k)), so (c) the only remedy is that, by operation of the statute, any acts taken in violation of the stay are automatically void ab initio (see In re Gruntz, 202 F.3d 1074 (9th Cir. 2000).
Proposed orders: The debtor is directed to serve and lodge proposed orders via LOU within 7 days after the hearing date, and attach a copies of the appropriate tentative rulings, if they are adopted, thereby incorporating them as this court's final rulings.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/17/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Deadlines/dates. This case was filed on 9/22/17.
Bar date: 12/29/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 2/2/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/12/17 at 2:00 p.m., brief status report due 11/28/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
1:00 PM
Docket 115
Please see the tentative ruling for the chapter 11 status conference (calendar no. 15, 3/20/18 at 1:00 p.m.).
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
2:00 PM
Docket 132
Revised Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (dkt. 1.1, 3/20/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the objection (dkt. 140).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Movant(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Docket 1
Revised Tentative Ruling for 3/20/18:
Appearances required.
Current issues: settlement motion (dkt. 132). This Court intends to provide an oral tentative ruling at the start of the hearing.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/13/18:
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Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to
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the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
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Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
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*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Docket 137
Revised Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (dkt. 2.1, 3/20/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the objection (dkt. 143).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
2:00 PM
Nicholas W Gebelt Nicholas W Gebelt
Akemi Sakurai Represented By Nicholas W Gebelt Nicholas W Gebelt
2:00 PM
Docket 1
Revised Tentative Ruling for 3/20/18:
Appearances required.
Current issues: settlement motion (dkt. 137).
Standing. There is evidence in the record that the objecting creditor (dkt. 143, the "Bank") is fully secured, which normally means that the Bank would not have standing to argue for the rights of unsecured creditors (as a portion of its objection does). But the Bank does have standing to oppose the proposed settlement, and it argues persuasively that confirmation issues are implicated by that settlement, so the tentative ruling is that the Bank has standing to argue the confirmation/fairness issues.
Merits. This Court intends to provide an oral tentative ruling at the start of the hearing.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
2:00 PM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status
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report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
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Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
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Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
2:00 PM
Docket 239
- NONE LISTED -
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Docket 240
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Adv#: 2:17-01503 Advocate Capital, Inc. v. Maximum Legal (California), LLP et al
Docket 32
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
2:00 PM
Richard Pachulski Represented By James KT Hunter
Plaintiff(s):
Advocate Capital, Inc. Represented By Jeffrey I Golden Faye C Rasch
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Adv#: 2:17-01503 Advocate Capital, Inc. v. Maximum Legal (California), LLP et al
and (2) Turnover of Property of the Estate Pursuant to 11 U.S.C. § 542 fr. 12/19/17, 03/06/18
Docket 1
Tentative Ruling for 3/20/18:
Appearances required.
Motion to Dismiss. At the hearing on 3/6/18, this court continued the matter for the parties to review relevant authority on the "unfinished business doctrine" and consider the implications of that authority on this proceeding. This Court has reviewed the parties' status reports (dkt. 39, 41), which effectively are briefs, and the parties are directed to address (a) whether further briefing or discovery is needed, either as to the Teitelbaum Case or any other matter, (b) whether the range of possible outcomes could include any in which the underlying clients (or any other parties) could be prejudiced (e.g., if any party presently before this Court is denied a recovery in this proceeding, would that party have any ability to seek recovery from the underlying client on a different theory?) and, if so, whether such persons need to be joined in this proceeding, and (c) whether to bifurcate the Teitelbaum Case from other matters and render a decision as to the former after oral argument and/or set deadlines for discovery or other procedures (see, e.g., the list of deadlines set forth in paragraph "(3)" of this Court's tentative ruling for 12/19/17, reproduced below).
Continued hearing/status conference: 5/29/18 at 1:00 p.m. Brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
2:00 PM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required. This Court has reviewed the parties' status reports (adv. dkt. 28, 29) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. The issues raised in paragraph "(1)" of this Court's tentative ruling for 12/19/17 (reproduced below) appear to have been addressed (see adv. dkt. 28, 29) or waived/forfeited by parties who have not expressly addressed them.
Mediation. The parties are directed to report on the status of the 2/27/18 mediation. If the mediation was not successful, the parties should be prepared to argue the merits of the motion to dismiss filed by Advocate Capital, Inc. (adv. dkt. 24, the "MTD") and related papers (e.g., adv. dkt. 30, 34). To the extent that the foregoing does not resolve the parties' litigation, this Court anticipates setting deadlines for discovery and possibly other matters (see paragraph "(3)" of this Court's tentative ruling for 12/19/17, reproduced below).
Continued status conference: 5/29/18 at 1:00 p.m. Brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 9) and the other filed documents and records in this adversary
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proceeding. The tentative ruling is to excuse the parties from any Rule 26 compliance at this time (Fed. R. Civ. P. 26, incoroprated by Fed. R. Bankr. P. 7026), as requested by certain of the parties. In addition, the tentative ruling is as follows (the parties need not repeat their responses in the status report unless there is some change to those responses).
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
The tentative ruling is to set a deadline of 1/5/18 for the parties to agree on a mediator whose schedule is consistent with the needs of this matter and lodge mediation order(s) (if the parties are unable to agree on a single order they may lodge competing orders and Judge Bason will decide among them or issue his own, although it should be possible for the parties to agree on a mediator).
Deadlines: This adversary proceeding has been pending since 10/17/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a
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copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/14/18 Expert(s) - deadline for reports: 5/18/18
Expert(s) - discovery cutoff (if different from above): 5/25/18 Dispositive motions to be heard no later than: 7/10/18
Joint Status Report: 3/27/18
Continued status conference: 4/10/18 at 2:00 p.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
Richard Pachulski Represented By
2:00 PM
James KT Hunter
Plaintiff(s):
Advocate Capital, Inc. Represented By Jeffrey I Golden Faye C Rasch
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Adv#: 2:17-01503 Advocate Capital, Inc. v. Maximum Legal (California), LLP et al
fr. 03/06/18
Docket 24
Tentative Ruling for 3/20/18:
See the tentative ruling for the Status Conference in this adversary proceeding (calendar no. 5.1 for 3/20/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
See the tentative ruling for the Status Conference in this adversary proceeding (calendar no. 2 for 3/6/18 at 2:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
Richard Pachulski Represented By James KT Hunter
2:00 PM
Movant(s):
Advocate Capital, Inc. Represented By Jeffrey I Golden Faye C Rasch
Advocate Capital, Inc. Represented By Jeffrey I Golden
Advocate Capital, Inc. Pro Se
Plaintiff(s):
Advocate Capital, Inc. Represented By Jeffrey I Golden Faye C Rasch
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
fr. 01/23/18, 1/30/18
Docket 297
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 7, 3/20/18 at 2:00 p.m.).
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference (calendar no. 2, 1/30/18 at 2:00 p.m.).
Tentative Ruling for 1/30/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
Movant(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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5/23/17, 7/11/17, 8/22/17, 10/03/17, 1/23/18,
1/30/18
Docket 7
Tentative Ruling for 3/20/18:
Appearances required.
Current issues: estimating Mr. Britton's claim
This matter has been substantially briefed and argued at prior hearings (see para. "(1)" of Revised Tentative Ruling for 1/30/18, reproduced below, and Mr. Britton's Opposition to Estimation Motion, dkt. 315, and debtor's Reply, dkt. 317, 322). This Court anticipates providing an oral tentative ruling at the start of the hearing, followed by a brief time (maximum 10 minutes each) for further argument before this Court makes a final ruling on the estimation motion.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: TBD
Continued status conference: 4/17/18; no written Status Report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Revised Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
(1) Current issues: estimating Mr. Britton's claim
At the hearing on 10/3/18 this court contemplated that after the debtor filed its motion (dkt. 297) for an order estimating the claim of creditor Layne Leslie Britton then this court would set a briefing schedule. The tentative ruling is to set the briefing schedule set forth below.
This court notes that the parties have already briefed, and this court has preliminarily addressed, some of the underlying issues, in connection with the debtor's prior motion for an order approving a draft plan and disclosure statement. Therefore a longer briefing schedule does not appear to be necessary. See dkt. 244 (motion), dkt. 260 (opposition, especially at pp.17:11-21:13 and Winston Decl. Ex.1.B.), dkt. 263 (reply, especially at pp.9:9-12:24), transcript of 8/22/17 hearing (dkt. 272), debtor's status report (dkt. 273), and audio recording of 10/3/17 hearing.
Tentative briefing schedule:
2/13/18 deadline for Mr. Britton's opposition to estimation motion (dkt.
297)
2/20/18 deadline for reply by the debtor 2/27/18 at 2:00 p.m., hearing
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: TBD
Continued status conference: to be held concurrent with the hearing on the claim estimation motion; no written Status Report required (but if any status report is filed by any party, it should be filed at the same time as the debtor's reply so that this court will have adequate time to review it before the hearing).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
2:00 PM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/23/18:
Continue to 1/30/18 at 2:00 p.m. to be concurrent with the preliminary hearing (for scheduling purposes) on the debtor's motion (dkt. 297) to estimate Mr.
Britton's claims. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's status report (dkt. 273), and any other matters appropriate for a status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's motion for approval of the proposed disclosure statement (dkt. 244), the Britton opposition (dkt.
260), the debtor's reply (dkt. 263), the debtor's status report (dkt. 262), and any other matters appropriate for a status conference.
If you do not appear, and the matter is not adequately resolved by consent,
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then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Continue as set forth below. Appearances are not required on 7/11/17.
Current issues
No sua sponte issues at this time.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement (dkt. 246, 245): D/S hearing scheduled for 8/22/17 at 2:00 p.m. (see dkt. 253).
Continued status conference: 8/22/17 at 2:00 p.m.; brief Status Report due 8/15/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/23/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The parties should be prepared to update this court on the status of the issues noted in the debtor's Eighth Status Report (dkt. 231), as well as whether this court should set any deadlines or procedures.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: The court will discuss setting deadlines related to the Plan/Disclosure Statement at the status conference.
Continued status conference: 6/20/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted
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provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/25/17:
Continue all matters to 5/23/17 at 1:00 p.m. pursuant to the debtor's request in the Seventh Status Conference Report (dkt. 224, p.3). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/28/17:
Continue all matters to 4/25/17 at 1:00 p.m. pursuant to the debtor's request in the Sixth Status Conference Report (dkt. 212, p.3). Appearances are not required on 2/28/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 12/13/16:
Continue all matters to 2/28/17 at 2:00 p.m. pursuant to the parties' request in the status conference statement (dkt. 181, p.3). Appearances are not required on 12/13/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 12/13/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues
The parties should be prepared to update this court on the status of this case including their negotiations, why this court should not order mandatory mediation, which parties in interest should be included in such mediation, and any other appropriate procedures regarding payment of professionals, filing documents under seal, etc.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: no deadline
Continued status conference: 2/28/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Fee applications. The tentative ruling is (1) after the reductions that Browne concedes, to overrule the Britton objection to Browne's fees; (2) to sustain in part the limited objection of Ms. West by allowing 100%, but temporarily deferring any payment (either from any retainer or from other sources), on account of the fee applications, with a deadline of 12/12/16 for Ms. West to file (a) an adversary proceeding to determine the relative priorities of her rights and interests in the royalties, and/or other funds in which the debtor's estate asserts an interest, as against the debtor, its creditors, and other parties in interest, and (b) a request (motion) for adequate protection of her alleged claims or interests (pursuant to 11 U.S.C. 361 and 363(c), (e), (p), and Rule 7001(2), (7) & (9), Fed. R. Bankr. P.). In addition, this court anticipates providing a tentative ruling on the merits of Ms.
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West's asserted rights and interests, and addressing what documents (already filed or filed in future) do or do not have to be under seal, and establishing a mutually workable procedure for any sealed documents.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: no deadline
Continued status conference: 4/4/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/6/16:
Continue to 12/13/16 at 1:00 p.m. based on the debtor's current status report (dkt. 112). Appearances are not required on 9/6/16.
The debtor is directed to file a brief status report two weeks before the continued status conference.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/12/16:
Continue to 9/6/16 at 11:00 a.m. to address the following issues. Appearances are not required on 4/12/16.
Based on the statements made in the debtor's status report (dkt. 92), this Court continues this status conference as set forth above. The debtor shall file a brief status report two weeks before the continued status conference.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
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Tentative Ruling for 2/2/16:
Continue to 2/23/16 at 2:00 p.m. unless any opposition/response to employment or recusal are filed prior to 1/30/16. Appearances are not required on 2/2/16.
Reasons: At the hearing on 1/19/16, this court stated that the status conference would be continued without further hearing if no oppositions/responses to employment or recusal were received by the deadline for such things, which is 1/29/16. As of the preparation of this tentative ruling (on 1/29/16) no such documents have yet been filed.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 1/19/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Key documents reviewed: Motion for relief from automatic stay (dkt. 11), the debtor's opposition (dkt. 33), and the movant's reply (dkt. 46); and the debtor's application to employ Browne George Ross LLP as special counsel under 11 U.S.C. 327(e) and supporting papers (dkt. 26-30, 44, 45).
Current issues.
Background. Claimant Britton's motion for relief from the automatic stay (dkt. 11) seeks to modify the automatic stay to liquidate the parties' claims in the underlying State Court action (Britton v. Riggs, LA Superior Ct. No. BC 496298). Just before trial was set to commence, the debtor filed this bankruptcy case, and trial has now been continued to 2/10/16. The debtor has filed an application (dkt. 26) to employ its existing attorneys in the State Court action as special counsel.
In view of the apparent urgency of these matters, this Bankruptcy Court issued an order raising a number of its initial concerns (dkt. 35), held a preliminiary hearing on 1/8/16, and directed the debtor to serve a
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supplemental notice addressing certain issues. In addition, when Judge Bason's law clerk learned of certain attenuated connections between him and the parties in this case, those matters were disclosed on the record (dkt. 39), and the debtor was directed to serve those disclosures on all parties in interest.
The debtor complied with these notice requirements (see dkt. 44, 43, 45) and the period for any response expires on 1/29/16 (fixed date in dkt. 39 as to this court's disclosures; and service on 1/11/16 + 14 days' notice + 3 days for service via U.S. mail = 1/29/16 as to the employment application). As of the time when this tentative ruling has been prepared (1/18/16) no response on either matter appears on the docket.
Relief from the automatic stay. The tentative ruling is to modify the automatic stay as follows, effective immediately upon (i) entry of an order of this court granting the employment application (so that the debtor can defend and prosecute its claims in the State Court action) and (ii) resolution of any request to be heard regarding recusal. Specifically, the automatic stay would be modified to permit litigation of the State court action insofar as liquidating claims by Mr. Britton agains the debtor and its principal, Mr. Riggs, as well as liquidating any counterclaims, including all subsidiary disputes such as whether the statute of limitations should be tolled and any alter ego issues, but not to permit enforcement of any judgment against any property in which the debtor asserts an interest absent further order of this Bankruptcy Court.
Judge Bason is not persuaded by the debtor's argument that the statute of limitations issue should be addressed by this Bankruptcy Court before any State Court litigation is permitted to continue. The principles underlying the Rooker Feldman doctrine (that this Bankruptcy Court may not act as essentially an appellate court for State Court determinations), as well as comity, a respect for the State Court's determination of these issues, conservation of judicial resources, the avoidance of forum shopping, and not permitting a party to obtain "two bites at the apple" all weigh against deciding the statute of limitations issues here. The State Court issued a detailed tentative ruling (dkt. 46-1, Ex.A, pp.23-26) regarding the statute of limitations issues, including its conclusion that those issues could not be determined as a matter of law because a reasonable trier of fact "may well determine that the delay in filing the action was due to the Defendants' fraud or other misconduct such that Defendants should be estopped from asserting the
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statute of limitations," and the State Court apparently adopted that tentative ruling when it denied the defendants' motion for summary judgment and declined to address the statute of limitations issues before trial. Judge Bason is not persuaded that this Bankruptcy Court can or should revisit that determination.
As to any claims that are truly alter ego claims (as distinguished from fraudulent transfer claims or other avoidance actions that belong to this bankruptcy estate), the tentative ruling is that under the Ahcom decision (623 F.3d 1248 (9th Cir. 2010)), any such claims do not belong to the bankruptcy estate and, therefore, the automatic stay would not prevent claimant Mr.
Britton from seeking to establish and pursue any alter ego claims against Mr. Riggs. Alternatively, the tentative ruling is to modify the automatic stay (if it applied) to permit such true alter ego claims to be litigated (when and if the State Court determines that they should be) because if those issues turn out to be relevant then they will have to be litigated anyway, and the State Court would be the proper forum in which to litigate them. To the extent that the debtor seeks to stay (enjoin) any such alter ego claims against Mr. Riggs in this bankruptcy case, such an injunction would have to be the subject of a separate adversary proceeding. See, e.g., In re Excel Innovations, Inc., 502 F.3d 1086 (9th Cir. 2007).
Employment of special litigation counsel. The tentative ruling is to conditionally approve employment of special litigation counsel for the reasons stated at the preliminary hearing on 1/8/16 and in the application (dkt. 26) and debtor's supplemental disclosures (dkt. 44). The condition is that no order approving such employment should be lodged until after the period for responses to such application or to this court's disclosures has expired (on 1/29/16), and of course if any such response is filed then this court will consider such responses (at a hearing as set forth below).
The potential for alter ego claims does not appear to create any cognizable conflict, at least at this stage of the litigation. Although it could be argued that there would be a conflict because any recovery that Mr. Britton could obtain from Mr. Riggs would decrease his claim against the debtor, and therefore theoretically benefit the debtor, it seems more likely at this stage that both Mr. Riggs and the debtor have a unified interest in contesting any asserted grounds for alter ego liability (i) so as to assure that Mr. Riggs devotes his energies to the debtor's future success and ability to pay its
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creditors, and (ii) so as to attempt to assure that there is a level playing field among the debtor's creditors (which, arguably, there would not be if one creditor - Mr. Britton - could pursue alter ego recoveries before other creditors could seek to do the same).
Of course, counsel for the debtor (both general and special counsel) and Mr. Riggs himself will need to monitor the situation continually. If a conflict or potential conflict does develop, they will need to file appropriate disclosures and/or seek a supplemental ruling from this court regarding the terms of any continued employment of special counsel.
Tentative hearing. If any response is filed to either the employment application or this court's disclosures, then a hearing will take place on 2/2/16 at 2:00 p.m. to address those things. If there is any such response, the debtor must notify chambers so that the matter may be added to this court's calendar for that day.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement*: file by 7/1/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 2/2/16 at 2:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 1/19/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/5/16:
Appearances required by counsel for the debtor and by the principal of the debtor.
Current issues.
Affiliated businesses. The debtor's status report (dkt. 20, p.8:17- 9:3) requests that the debtor be excused from providing financial information concerning affiliates in both the status report and monthly operating reports. The tentative ruling is to grant that request.
Service of status report. This court's form status report must be served on, inter alia, all of the debtor's secured creditors and the top 20 largest general unsecured creditors. It appears that there are no secured creditors, but that unsecured creditors were not served (see dkt. 20, p. 10). The tentative ruling is to direct the debtor, no later than 1/6/16, to serve all parties in interest with a copy of the status report and this tentative ruling, and then parties in interest may, if they choose, raise any appropriate issues at future status conferences.
Plan and disclosure statement. The debtor has suggested (dkt. 20, p.4:20-23) a deadline of 4/30/16 to file initial drafts. The debtor should be prepared to address the associated procedures, including the local form plan and whether that deadline is consistent with the pending litigation with creditor Layne Leslie Britton (dkt. 11), currently set for trial in State court for 2/10/16.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement*: file by 4/30/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to
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object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 1/19/16 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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fr. 2/22/18
Docket 4
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (3/20/18 at 2:00 p.m., calendar no. 13).
Tentative Ruling for 2/22/18:
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
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fr. 2/22/18
Docket 5
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (3/20/18 at 2:00 p.m., calendar no. 13).
Tentative Ruling for 2/22/18:
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
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of Business fr. 2/22/18
Docket 6
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (3/20/18 at 2:00 p.m., calendar no. 13).
Tentative Ruling for 2/22/18:
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
B&B Liquidating, LLC Represented By Brian L Davidoff Brian L Davidoff
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LLC; (1) Authorizing Post-Petition Financing; (2) Authorizing Debtor's Use of Cash Collateral; and (3) Related Relief
fr. 2/22/18
Docket 21
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (3/20/18 at 2:00 p.m., calendar no. 13).
Tentative Ruling for 2/22/18:
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
B&B Liquidating, LLC Represented By Brian L Davidoff Brian L Davidoff
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Themed Sales; (2) Approving the Assumption of the Consulting Agreement with Liquidation Consultant Great American Group, LLC / Tiger Capital Group,
LLC; and (3) Related Relief fr. 2/22/18
Docket 17
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (3/20/18 at 2:00 p.m., calendar no. 13).
Tentative Ruling for 2/22/18:
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
B&B Liquidating, LLC Represented By Brian L Davidoff Brian L Davidoff
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Docket 19
Tentative Ruling for 3/20/18:
Appearances are not required.
Current issues. This Court has reviewed the debtor's status report (dkt. 78) and the other filed documents and records in this case.
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an a final basis.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on a final basis.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on a final basis.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to grant the motion on a final basis.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to authorize consensual use of cash collateral as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), and the amended budget (dkt. 65).
Proposed Orders. The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 7/31/18 DO NOT serve any notice at this time (this Court will prepare an order after the status conference)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: 5/29/18 at 2:00 p.m., brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/22/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear (and pursuant to LBR 9075-1, any response may be presented orally).
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. As of the time when this tentative ruling has been prepared, there is no proof of service of the debtor's motions. The following tentative rulings are subject to (i) adequate proof of service and (ii) any oppositions presented at or prior to the hearing. In addition, rather than stating at length this Court's reasoning, the following tentative rulings adopt, to the extent relevant, the reasoning of this Court regarding similar motions in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46-47).
Notice/Service. Pursuant to LBR 9075-1(a)(2)(B), this Court has already orally and conditionally granted the debtor's request to shorten time on the motions identified below, subject to the right of any party in interest to object at or before the hearing to the adequacy of notice. With those limitations, the tentative ruling is to find notice adequate and grant the debtor's requests in its motions (e.g., dkt. 5, p.3:3-5) to excuse any requirement for telephonic notice provided that overnight delivery or other permissible expedited service (e.g., personal delivery, or email as permitted by applicable rules) has been delivered no later than 24 hours prior to this hearing to all persons with a pecuniary interest that could be adversely affected by the relief requested in each motion.
Immediate relief. With respect to any immediate relief described below, the tentative ruling is that the debtor has shown sufficient cause for
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such immediate relief under Rule 6003 (Fed. R. Bankr. P.), to the extent applicable, and the other rules and procedures governing relief on an emergency or expedited basis.
Limit Notice Motion (dkt. 3). The tentative ruling is to grant this motion, subject to the following adjustments. First, the Limited Service List must be augmented to include (i) junior lienholder Emerald Capital Funding, LLC ("Emerald") and (ii) the debtor's own bankruptcy counsel (because the motion apparently contemplates that all parties in interest - not just the debtor
- will be authorized to use the Limited Service List). Second, this Court contemplates limitations that parallel this Court's modifications to the parallel order in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 53).
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on the following conditions on an interim basis, with a final hearing at the same time as the continued status conference set forth below. No later than 2/23/18 the debtor must file a declaration of its CFO or other appropriate person certifying that, first, the debtor has taken measures to assure that prepetition debts are not paid out of its existing accounts (e.g., stopping payment on prepetition checks, except to the extent authorized by this court), and second, the debtor is maintaining sufficiently detailed books and records that, if it becomes necessary to analyze the debtor's finances as of the petition date, such analysis will not be impaired by the non-closing of the debtor's prepetition accounts.
Lease Rejection Motion (dkt. 7). The tentative ruling is to grant the motion on a final basis.
Employee Wages Motion (dkt. 8). The tentative ruling is to grant this motion immediately and on a final basis as to the employees, and to grant it as to the retention of Modern HR, Inc. ("HR") either immediately or at a continued hearing if the debtor can provide an offer of proof or evidence that HR's rates are within normal market rates for comparable services.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to approve the retention of Great American Group LLC and Tiger Capital Group
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LLC (collectively, "Liquidation Consultant") subject to the filing, no later than 2/23/18, of a satisfactory statement of Liquidation Consultant's distinterestedness on Local Form F 2014-1.STMT.DISINTEREST.PROF. In addition, the tentative ruling is to authorize the proposed sales of the debtor's inventory and furniture, fixtures and equipment ("FF&E"), free and clear of any liens, claims, encumbrances or other interests of all persons/entities who have been served with the motion, with all such interests to attach to proceeds of such sales, under 11 U.S.C. 363(b) and (f)(1), (2) and (5), for the reasons stated in the motion papers. In addition, the tentative ruling with respect to compliance with nonbankruptcy liquidation laws, restrictions in leases, and abandonment of property is to track the limitations in this Court's interim order on the parallel motion in the Bachrach case (no. 2:17-bk-15292- NB, dkt. 71). In addition, the tentative ruling is to grant all such relief on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Collateral/DIP Financing (dkt. 21, 22). The parties should be prepared to address the following issues. (i) Is there any evidence that the debtor is "unable" to obtain credit by granting a "senior or equal lien" to the lien of Siena Lending Group, LLC ("Siena"), within the meaning of 11 U.S.C. 364(d)(1)(A)? (ii) Why would it be appropriate for this Court to approve a roll- up, cross-collateralization, and other provisions that generally are disapproved (see dkt. 22)? (iii) Why should this Court grant broader relief in
this case than it did in approving a similar motion in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46, Ex.A, pp.5-9, and dkt. 50)? The tentative ruling is to authorize either consensual or non-consensual use of cash collateral and, if the terms can be modified sufficiently to be acceptable, the proposed DIP financing, on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Notice of continued hearings. The tentative ruling is to set a deadline of 2/27/18 for the debtor to file and serve a notice of the final hearing on all motions that are only granted on an interim basis, and to set the same deadline for the debtor to file any supplements or amendments to such motions, with deadlines of 3/6/18 for any opposition and 3/13/18 for any reply.
Proposed Orders. This court intends to file these tentative rulings on the docket (with the caption, "Memorialization Of Tentative rulings" or the like). Thereafter, if appropriate, all orders can grant or deny relief "for the reasons stated in the Memorialization Of Tentative Rulings (dkt. ), as
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modified or supplemented on the record at the hearing" (or similar language). The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
In view of the shortened time on the foregoing motions, parties in interest may appear and dispute the foregoing tentative rulings without prior notice to the debtor or the court (contrary to the usual requirements for "tentative rulings" under Judge Bason's Procedures, posted at www.cacb.uscourts.gov).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: March 20, 2018 at 2:00 p.m., status report due 3/6/18. (see order, dkt. 18).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
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fr. 1/11/18, 02/08/18, 03/08/18
Docket 85
Tentative Ruling for 3/20/18:
Grant, subject to any timely opposition(s) (due 3/19/18 at noon) and any overbidding at the hearing, and further subject to the buyer's declaration supporting a finding of good faith under 11 U.S.C. 363(m). Appearances required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court is inclined to grant the debtor's request for a continuance on shortened notice (dkt. 110, p.2:17-19) for service of an amended motion substituting a new purchaser for the one who has withdrawn, but believes that it is appropriate first to address the following issues with the parties. The tentative ruling is to set a continued hearing for 3/20/18 at 8:30 a.m., with a deadline of 3/9/18 to file and serve an amended motion via U.S. mail, which must include a notice that opposition papers are due by 3/19/18 at noon, and any reply may be presented orally at the hearing. Meanwhile the parties should be prepared to address the following issues.
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IRS. The IRS has objected (dkt. 103) to one of the prior versions of the debtor's motion (dkt. 102). That objection appears to be largely still relevant to the more recent versions of the debtor's motion (dkt. 105, 108) as well as the anticipated amended motion with a new buyer. Accordingly, it seems appropriate to address some of the issues raised by the IRS, at least on a preliminary basis.
The IRS objects (dkt. 103, pp.1:26-3:27) to the debtor's method of service (see also tentative ruling for 2/8/18, item "(2)"). Rather than deciding whether the address listed on the proof of service does or does not supersede the addresses that would otherwise be required, this Court anticipates that counsel for the debtor will serve the IRS with the amended motion at all addresses listed in the IRS' objection (including the address of its attorneys listed at the top of that objection), thereby mooting the issue.
The IRS also objects (dkt. 103, p.4:1-17) that there is insufficient evidence that the proposed sale is for the highest and best price. This Court notes that the more recent versions of the motion appear to include evidence of marketing by a licensed real estate broker and appear to contemplate overbidding at the hearing, which may resolve the IRS' objection. If this issue is still relevant under the amended motion, the IRS can renew its objection.
The IRS also objects (dkt. 103, pp.4:18-6:3) that its liens must be paid in full. The IRS distinguishes In re Jolan, 403 B.R. 866 (Bankr. W.D. Wash. 2009), relying on In re Hassen Imports P'ship, 502 B.R. 851 (C.D. Cal. 2013). Again, if the IRS wishes, it can renew this objection.
Wells Fargo. This Court presumes that the debtor has no objection to including the language requested by Wells Fargo (dkt. 96, p.2, para.3) in any order granting the motion. If the debtor does object, that must be raised at this hearing.
Service on Los Angeles Federal Credit Union ("LA FCU") and Bureaus Investment Group Portfolio No. 15, LLC ("Bureaus"). The address listed on the proof of service (dkt. 108) for LA FCU does not match the most recent address designated by LA FCU on its proof of claim (see claim no. 9). The address listed on the proof of service for Bureaus does not identify Steven Pickett, the individual identified as the agent for service of process on the California Secretary of State's website.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/8/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/8/18:
Continue to 3/8/18 at 8:30 AM for corrected service on the junior lienholders, and clarification of certain ambiguities, all as set forth below. Appearances are required by debtor's counsel on 2/8/18.
Key documents reviewed (in addition to motion papers): IRS's Opposition (dkt. 103).
Background
The debtor's original motion (dkt. 85) did not ask for authority to sell free and clear of liens under 11 U.S.C. 363(f), although it appeared to seek such relief. The Chapter 13 Trustee responded, among other things, "it is not clear if all lienholders have agreed to such a sale." Dkt. 89. (The senior lienholder, Wells Fargo, also filed a conditional non-opposition, dkt. 96.)
The debtor has now filed an amended motion (dkt. 102) which seeks authority to sell free and clear of liens under 11 U.S.C. 363(f). The debtor does not have any specific sale arranged, although the debtor hopes to sell the property for something in the range of $1 million, which apparently is above the dollar amount owed to senior lienholder Wells Fargo but well below the dollar amount sufficient to pay the junior liens on the property.
The motion appears to be seeking authorization for sale procedures. In addition, the motion appears to be seeking either (a) pre-authorization to sell for whatever price the debtor might obtain (which this court tentatively is not prepared to grant) or, alternatively, (b) a subsequent motion and/or hearing to approve whatever proposed sale the debtor actually negotiates
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(which is a procedure that this court is inclined to approve, subject to the issues noted below).
Service
Service on the junior lienholders does not appear to comply with the applicable rules. For example, Rules 2002(g) and 7004(b)(3) (Fed. R. Bankr. P.) generally require service at the most recent address designated by the creditor (typically in a proof of claim) or, if no such address has been designated, then organizations typically must be served "Attn: Officer or Managing/General Agent" or the like, at an address reasonably calculated to reach that person (e.g., corporate headquarters, rather than a P.O. Box used for payments). Service on attorneys who have represented a creditor outside of the bankruptcy case is inadequate. See In re Villar, 317 B.R. 88 (9th Cir. BAP 2004). FDIC-insured institutions must be served via certified mail, per Rule 7004(h).
Similarly, service on the Internal Revenue Service ("IRS") usually must comply with Rule 7004(b)(5) (the Court Manual includes instructions and addresses for such service). The rules are not entirely clear, but that may be superseded by the address designated by the IRS in its proof of claim, although that does not help because the debtor has not used that address.
See Claim 2-1, p.1, under "Where should notices to the creditor be sent?"
The debtor must re-serve the motion in compliance with the applicable rules for service. That motion must be accompanied by a notice of the continued hearing date (with the standard deadline for any opposition) and a notice clarifying the ambiguities noted below.
Ambiguities
Proposed use of proceeds
The debtor calculates, based on a hypothetical sale price of $1 million, that after paying Wells Fargo's senior debt, real estate taxes, and costs of sale, there will be a remaining balance of roughly $135,000 "for the benefit of creditors." Dkt. 102, p.6:27-28. It is not clear what the debtor means by this.
Typically a sale "free and clear" of liens and other interests under section 363(f) provides for net proceeds to be held in a segregated account and with all remaining liens to attach to those proceeds pending further order of the court, with the same priority, validity, and dollar amounts as those liens had attached to the original collateral. The typical benefit to the debtor and
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the bankruptcy estate of using this procedure, instead of simply paying the liens out of escrow, is that (i) the sale will not be delayed by any dispute as to the priority, validity, or dollar amount of any lien, or by litigation to avoid one or more liens under 11 U.S.C. 522(f), 547, or on other grounds, and (ii) if the debtor can provide adequate protection of the junior liens then the debtor might be able to use the funds in a way that ultimately will result in a net benefit to all parties - such as repairing a roof on rental property that will assure more rental income, or investing in a business that will generate more revenues.
It appears that the debtor might intend to pay liens, in their order of priority, "directly from escrow" (dkt. 102, p.9:17), or at least provide the Chapter 13 Trustee with discretion to do so (id., p.9:1-6), so perhaps there will be no need to hold net proceeds in a segregated account. In any event, the debtor should clarify what is intended by proposing to use the projected
$135,000 "for the benefit of creditors." (If the debtor intends something different from the options outlined above then the debtor must say so; but what the debtor cannot do is to simply use the $135,000 for personal reasons, or distribute it to unsecured creditors, because then the debtor would be ignoring the secured claim(s) held by junior lienholder(s).)
Approval of actual sale
As noted in the "Background" section of this tentative ruling, it is not clear if the debtor intends for this court to pre-authorize whatever sale the debtor might negotiate, but this court is not inclined to grant such a pre- authorization. On the other hand, this court is inclined to approve a two step process: first authorizing the sale procedures set forth in the motion (dkt.
102), as clarified above, and second authorizing the debtor to provide notice to creditors of the actual sale price and other terms (once a sale is negotiated) pursuant to the usual procedures for sales of property in chapter 13 cases in this district. If the debtor seeks any special procedures, such as shortened time, then the debtor should make that clear in the motion papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Appearances required. This matter was set for hearing based on the Chapter 13 Trustee's objection (dkt. 89) that, among other things, "it is not clear if all lienholders have agreed to such a sale." One lienholder (apparently the senior lienholder who will be paid in full) has filed a conditional non-opposition (dkt. 96), but what about the other lienholders? The motion does not request any sale free and clear of liens under 11 U.S.C. 363(f), nor does the motion address the elements of that statute. Does the debtor intend to amend the motion to seek such relief?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Donnicus L Cook Represented By Vernon R Yancy
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
Docket 9
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 18
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Robins Kaplan, LLP as Special Counsel
Docket 20
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Law Offices of Randy S. Snyder as Special Counsel
Docket 36
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 1
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear.
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash flow and cash collateral motion (dkt. 5, 14, 15, 29). This Court's written order (dkt. 29) erroneously lists the continued hearing as 3/20/18 instead of 4/17/18 at 2:00 p.m., as orally ordered at the hearing on 3/9/18. Nevertheless, it is appropriate in connection with this Status Conference to address the debtor's current and projected cash flow and related issues.
This Court was not persuaded at the hearing on 3/9/18 that the debtor can generate positive cash flow. The debtor is directed to provide a brief update on any plans to generate positive cash flow from her various businesses and properties. It is also appropriate for other parties in interest to address whether there has been adequate disclosure to date regarding the finances of those businesses and properties. The debtor is cautioned that the declaration due on 3/27/18 must provide comprehensive disclosures regarding those businesses and properties: if the debtor cannot show reasonable prospects for positive cash flow within a reasonable time then this Court might have to grant relief from the automatic stay (upon a proper motion), or convert or dismiss this bankruptcy case, at least if the debtor does not abandon unprofitable businesses or properties.
Employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt.
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9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure), including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why were resumes for associates, paralegals, and persons who are "of counsel" to the firm not included? (ii) Has counsel waived or amended the provisions in the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined in the parties' papers)?
Proposed special counsel: the Snyder firm (dkt. 36, 37). (i) What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 4/17/18 at 2:00 p.m., status report due 4/3/18. (see order, dkt. 30).
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/9/18:
[no tentative ruling was posted for this hearing]
Debtor(s):
Dana Hollister Represented By David A Tilem
9:00 AM
CITIZENS BUSINESS BANK
vs DEBTOR
Docket 16
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
Movant(s):
Citizens Business Bank Represented By Reed S Waddell
Gerrick Warrington
9:00 AM
Docket 5
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
9:30 AM
Docket 1
Debtor(s):
Dana Hollister Represented By David A Tilem
8:30 AM
Docket 79
- NONE LISTED -
Debtor(s):
Luis Alfonso Duran Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Joint Debtor(s):
Alejandra Janeth Campos Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Movant(s):
Luis Alfonso Duran Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Alejandra Janeth Campos Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 44
- NONE LISTED -
Debtor(s):
Regina Sanders Represented By Thomas B Ure
Movant(s):
Regina Sanders Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 23
NONE LISTED -
Debtor(s):
LaKanda Monique Horn Represented By Kahlil J McAlpin
Movant(s):
LaKanda Monique Horn Represented By Kahlil J McAlpin
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 36
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Didra L Brown Represented By Sanaz S Bereliani
Movant(s):
Didra L Brown Represented By Sanaz S Bereliani Sanaz S Bereliani
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
Continue to 5/3/18 at 8:30 a.m., with a deadline of 4/13/18 for the debtor to file and serve supplemental papers addressing the following issues.
Appearances are not required on 4/5/18. Reasons:
Debtor's appraisal is inadequate. The evidence in support of the motion (dkt. 21, Ex.4) states that the appraised value is based on a "liquidation" value which is defined as, among other things: "[t]he most probable price ... under the following conditions: (1) consummation of a sale within a short period of time ... (4) the seller is under extreme compulsion to sell ... (7) a normal marketing effort is not possible due to the brief exposure time." These assumptions are inconsistent with 11 U.S.C. 506(a)(1), which requires that the value is to be determined "in light of the purpose of the valuation and of the proposed disposition or use of such property ...." There is no evidence that the debtor is contemplating a sale of the subject property, let alone a forced liquidation sale. To the contrary, if any sale were necessary there are provisions in the Bankruptcy Code that permit an orderly, well-marketed sale for the maximum market value.
This Court presumes that the debtor's appraiser can use the prior investigation of the subject property to arrive at an alleged fair market valuation by the deadline stated at the start of this tentative ruling. If that valuation is sufficient to support the motion then this matter will go forward; and otherwise the debtor should file a withdrawal of the motion.
At the continued hearing, if the parties' appraisals continue to support opposite outcomes, they should address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the
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parties/their appraisers) as the court's own expert under FRE 706.
The motion identifies two addresses: (1) 10924 Theis Avenue Whittier, CA 90604 (the "Whittier Address"); and (2) 8018 Spring Hill Street, Chino, CA 91708 (the "Chino Address"). It appears the correct address is the Whitter Address, but debtor's own declaration refers to the Chino Address. Since declarations are filed under penalty of perjury, the debtor is cautioned that she must read, understand and make any necessary changes to any future declarations prior to signing. No later than the deadline stated at the start of this tentative ruling counsel for the debtor is directed to file her own declaration affirming that she has shown this tentative ruling to the debtor and has stressed the importance of reading and understanding declarations before signing them.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Graciela Redden Represented By Julie J Villalobos
Movant(s):
Graciela Redden Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 11
Tentative Ruling for 4/5/18:
Continue to 5/3/18 at 8:30 a.m., with a deadline of 4/19/18 to file and serve the debtor's declaration addressing the following issue. Appearances are not required on 4/5/18.
Reasons: The evidence in support of the motion (dkt. 11, p.9 & Ex.B) is a Kelley Blue Book printout that states that it is a "private party" value, but under 11 U.S.C. 506(a)(2) the value means "the price a retail merchant would charge for the property ..." (emphasis added) (which this Court expects is higher than the "private party" value). The tentative ruling is to continue the hearing to the above date and time and direct the debtor to submit a supplemental declaration addressing this issue.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
La Tanya R. Taylor Represented By Sundee M Teeple
Movant(s):
La Tanya R. Taylor Represented By Sundee M Teeple
8:30 AM
Trustee(s):
Sundee M Teeple Sundee M Teeple Sundee M Teeple
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 100
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Francisco Velasco Represented By Rebecca Tomilowitz
Joint Debtor(s):
Hilaria Velasco Represented By Rebecca Tomilowitz
Movant(s):
Kathy A Dockery (TR) Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 51
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 51) and the debtor's opposition (dkt. 52).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
James Razumich Represented By Matthew D Resnik
Movant(s):
Kathy A Dockery (TR) Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 90
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised by this court's order (dkt. 91) setting this matter for hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ranjit Sivaprakasam Represented By Aalok Sikand
Movant(s):
Ranjit Sivaprakasam Represented By Aalok Sikand
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
from the Automatic Stay Under 11 U.S.C. Sec. 362
Docket 59
NONE LISTED -
Debtor(s):
Kwame Boakye Represented By William J Smyth Stephen S Smyth
Movant(s):
Kwame Boakye Represented By William J Smyth Stephen S Smyth
Trustee(s):
Kathy A Dockery (TR) Represented By William J Smyth
8:30 AM
Docket 55
NONE LISTED -
Debtor(s):
Jose Manuel Rivera Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Marianne Alice Rivera Represented By
Ramiro Flores Munoz
Movant(s):
Jose Manuel Rivera Represented By
Ramiro Flores Munoz
Marianne Alice Rivera Represented By
Ramiro Flores Munoz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 41
Tentative Ruling for 4/5/18:
Grant, subject to the caveats set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Amended proof of service on Employment Development Department (dkt. 50); Supplemental Declaration of D. Justin Harelik In Support of Debtor's Objection to Claim No. 8 (the "Harelik Declaration") (dkt. 51). As of the preparation of this tentative ruling, the Employment Development Department has not filed any response.
Reasons: The tentative ruling is to grant Debtor's objection and reclassify the Employment Development Department's Claim No. 8 as an unsecured claim for $1,874.57. On the one hand, it is not entirely convincing to assert (as Mr. Harelik appears to assert) that it is worth the attorney fees to object to a secured claim of $1,874.57: it is true that if that claim were paid as a secured claim then unsecured creditors would receive a slightly smaller dividend; but it is also true that if the attorney fees are paid for this objection then that will also reduce the dividend, and there is no actual calculation showing that the attorney fees in this instance are worth the projected net gain. On the other hand, Mr. Harelik's declaration states that he will not charge any fees in connection with this claim objection, so no hearing is required to address that issue, and accordingly the tentative ruling is to grant this claim objection without requiring appearances.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/8/18:
Continue to 4/5/18 at 8:30 a.m. to address the following issues. Appearances are not required on 3/8/18.
Reasons:
Service. The proof of service does not reflect service on the Employment Development Department to the exact address provided in the proof of claim (e.g., one address fails to include "BOCS MIC 91" and the other address includes an incorrect zip code). The debtor is directed to re-serve the claim objection and file an amended proof of service by no later than 3/15/18.
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that counsel for the debtor may be charging the bankruptcy estate (and the debtor) more than it would cost simply to pay the projected distribution to the claim. No later than 3/15/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection (so as not to further waste the
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time of this Bankruptcy Court, the claimant, and any other parties in interest in addressing this matter).
Counsel is not expected to charge any fees on this matter. This Bankruptcy Court presumes that counsel will not charge any fees on this matter (including all past, present and future work related to this claim objection) and will return any fees that might be (or might have already been) awarded relative to this matter. If that is incorrect, then counsel must appear at the continued hearing and argue why fees are appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Mario Anthony Singleton Represented By
D Justin Harelik
Movant(s):
Mario Anthony Singleton Represented By
D Justin Harelik D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 46
Deny for the reasons stated in the opposition (dkt. 61). In addition, in future counsel for the debtor is reminded to include a cost/benefit analysis as part of every objection to claim (see Judge Bason's posted procedures, available at www.cacb.uscourts.gov). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Silvana Cordova Represented By
Hasmik Jasmine Papian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 47
Deny for the reasons stated in the opposition (dkt. 61). In addition, in future counsel for the debtor is reminded to include a cost/benefit analysis as part of every objection to claim (see Judge Bason's posted procedures, available at www.cacb.uscourts.gov). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Silvana Cordova Represented By
Hasmik Jasmine Papian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 48
Deny for the reasons stated in the opposition (dkt. 61). In addition, in future counsel for the debtor is reminded to include a cost/benefit analysis as part of every objection to claim (see Judge Bason's posted procedures, available at www.cacb.uscourts.gov). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Silvana Cordova Represented By
Hasmik Jasmine Papian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 49
Deny for the reasons stated in the opposition (dkt. 61). In addition, in future counsel for the debtor is reminded to include a cost/benefit analysis as part of every objection to claim (see Judge Bason's posted procedures, available at www.cacb.uscourts.gov). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Silvana Cordova Represented By
Hasmik Jasmine Papian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 50
Deny for the reasons stated in the opposition (dkt. 61). In addition, in future counsel for the debtor is reminded to include a cost/benefit analysis as part of every objection to claim (see Judge Bason's posted procedures, available at www.cacb.uscourts.gov). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Silvana Cordova Represented By
Hasmik Jasmine Papian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 51
Deny for the reasons stated in the opposition (dkt. 61). In addition, in future counsel for the debtor is reminded to include a cost/benefit analysis as part of every objection to claim (see Judge Bason's posted procedures, available at www.cacb.uscourts.gov). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Silvana Cordova Represented By
Hasmik Jasmine Papian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 52
Deny for the reasons stated in the opposition (dkt. 61). In addition, in future counsel for the debtor is reminded to include a cost/benefit analysis as part of every objection to claim (see Judge Bason's posted procedures, available at www.cacb.uscourts.gov). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Silvana Cordova Represented By
Hasmik Jasmine Papian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 40
NONE LISTED -
Debtor(s):
Felisa Dee Richards Represented By Eliza Ghanooni
Movant(s):
Felisa Dee Richards Represented By Eliza Ghanooni Eliza Ghanooni
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 26
NONE LISTED -
Debtor(s):
Ronald Martinez Represented By Moises A Aviles
Movant(s):
Ronald Martinez Represented By Moises A Aviles
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 1
Please see the tentative ruling for the status conference and OSC (calendar no. 23, 4/5/18 at 8:30 a.m.).
Debtor(s):
Ronald Martinez Represented By Moises A Aviles
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 8
Tentative Ruling for 4/5/18:
Appearances required by the debtor and debtor's counsel.
At a hearing on 2/8/18, this court denied the debtor's motion to avoid the junior liens of Wells Fargo and the City of Pomona, Housing Division on his principal residence under 506(d) for the reasons set forth below in this court's tentative ruling. In light of debtor's counsel's apparent lack of bankrupty experience, this court also set this status conference to determine whether the debtor has associated in, or obtained, new counsel and is properly prosecuting this case.
On 3/5/18, debtor's counsel requested a continuance of this hearing due to a death in the family. On 3/6/18, this court granted the request to continue the hearing and directed debtor and debtor's counsel, Mr. Aviles, to appear and show cause why sanctions, dismissal with a bar, or other relief should not be imposed (dkt. 37) (the "OSC").
There is no tentative ruling, but the debtor and debtor's counsel should be prepared to address the issues identified in the OSC.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/8/18:
8:30 AM
(1) Deny for the reasons set forth in the opposition (dkt. 22) filed by Wells Fargo Bank, N.A. ("Wells Fargo") and the additional reasons set forth below, and (2) direct counsel to address at the hearing (a) why he should be allowed any fees for this motion, (b) whether he is competent to represent the debtor at all, and (c) whether he should be associating experienced bankruptcy counsel or arranging for a substitution of counsel and transfer of any fees received from the debtor. Appearances required by counsel for the debtor and by the debtor himself (counsel for the debtor must appear in person, but the debtor and any other parties in interest may appear by telephone if they follow Judge Bason's posted procedures for telephonic appearances, available at www.cacb.uscourts.gov).
Proposed order: Wells Fargo is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons for denial: The debtor seeks to avoid the junior liens of Wells Fargo and the City of Pomona, Housing Division's ("Pomona") on his principal residence pursuant to section 506(d). But on the record before this court (1) service is inadequate, (2) the evidence is inadequate, and (3) there is no basis to avoid either lien (in whole or in part) under section 506(d).
Service is inadequate
The proof of service (dkt. 8, last 2 pages) fails to comply with the rules for service. Service on Pomona does not comply with Rule 7004(b)(6).
This court also notes that service on Wells Fargo was defective, although Wells Fargo has waived any such defects by filing an opposition (in which it did not raise any deficiency in service). Among other things, Wells Fargo was not served to the attention of an officer as required by Rule 7004 (b)(3) & (h) (Fed. R. Bankr. P.) (incorporated by Rule 9014(b), Fed. R. Bankr. P.).
Evidence is inadequate
The form motion includes a section for describing the supporting evidence by exhibit numbers. See dkt. 8, p.4, section 3.c. That section is mostly blank.
8:30 AM
Section 506(d) does not support avoidance of either lien
The motion papers include an appraisal valuing the property at
$265,000. The debtor states that the total value of all liens against the property is $207,417.65. Motion, p.3, lines 3-7 (1st DOT $89,545.97 + Wells Fargo's 2nd DOT $65,157.55 + Pomona's 3rd DOT $48,714.13 =
$207,417.65). Therefore, according to the debtor's own evidence both liens are fully secured and cannot be avoided under section 506(d).
It appears that counsel for the debtor has mistakenly conflated two sections of the Bankruptcy Code:
section 506(d) (which only permits avoidance of liens to the extent they are "under water" (and sometimes not even then - see 11 U.S.C. 1322(b) (2)), and
11 U.S.C. 522(f), which permits avoidance of judicial liens to the extent that they impair a valid homestead exemption: there is no showing that the liens of Wells Fargo or Pomona are "judicial" liens, and in any event the motion neither seeks nor establishes a sufficient basis for avoidance under section 522(f).
The debtor's reply (dkt. 24) cites irrelevant cases. One case was decided under section 522(f) (and much of its discussion involves matters that have since been mooted by the 2005 revisions to the Bankruptcy Code). See In re Smith, 92 B.R. 287 (Bankr. S.D. Ohio 1988). The debtor cites one other case, for the proposition that "a Motion to Strip [a junior] mortgage may be filed, despite [the fact] that Debtor already obtained a Chapter 7 Discharge." Dkt. 24, p.1:24-25 (citing In re Blendheim, 803 F.3d 477 (9th Cir. 2015)). That issue is irrelevant to whether the lien is partially or wholly unsecured; and on the debtor's own facts the subject liens are wholly secured.
Counsel's fees and competence
Bankruptcy is a complex specialty. It appears that the debtor's counsel is not sufficiently familiar with the Bankruptcy Code and Rules to represent the debtor, either in this specific matter or more generally in this bankruptcy case. Awarding fees for the counterproductive work on this matter would only harm the debtor and creditors, and going forward this Bankruptcy Court is concerned about the potential for irreparable harm to the debtor and creditors. Counsel should be prepared to address (a) whether new counsel should be substituted in and (b) whether any fees that the debtor or the
8:30 AM
Chapter 13 Trustee may have paid to such counsel should be transferred to new counsel.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Ronald Martinez Represented By Moises A Aviles
Movant(s):
Ronald Martinez Represented By Moises A Aviles
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 19
NONE LISTED -
Debtor(s):
Juan M. Valenzuela Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 28
Deny for the reasons stated in the opposition (dkt. 31), except that this Court applies the "law of the case" doctrine as against the parties (the debtor), not against this Court itself. Appearances are not required.
Proposed order: Claimant John R. Lobherr, Inc., is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Sang Chyun Represented By
Donald E Iwuchuku
Movant(s):
Sang Chyun Represented By
Donald E Iwuchuku Donald E Iwuchuku Donald E Iwuchuku
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Cont'd hrg re: Motion to modify plan or suspend plan payments
fr. 1/11/18
Docket 34
Debtor(s):
Kevin Milan Williams Represented By Scott Kosner
Movant(s):
Kevin Milan Williams Represented By Scott Kosner
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 26
Tentative Ruling for 4/5/18:
Appearances required. At the hearing on 2/8/18 this court continued the hearing at the parties' request to allow time for them to obtain a binding third party appraisal. There is no tentative ruling, but the parties should be prepared to update this court on the status of their negotiations and when they expect this matter to be resolved.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/8/18 (same as for 12/7/17, 10/5/17 and 7/20/17): Appearances required. There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
8:30 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sandra Delores Harding Represented By Kevin T Simon
Movant(s):
Sandra Delores Harding Represented By Kevin T Simon Kevin T Simon Kevin T Simon Kevin T Simon Kevin T Simon
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
principal residence with creditor: Hilltop Colony HOA fr. 1/11/18
Docket 21
Debtor(s):
Yumi Chan Represented By
Darren G Smith
Movant(s):
Yumi Chan Represented By
Darren G Smith Darren G Smith
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 1/11/18, 03/08/18
Docket 21
Tentative Ruling for 4/5/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This matter has been continued from 3/8/18 and 1/11/18 to provide the parties with an opportunity to engage in settlement negotiations and, apparently, agree to an order granting the motion in substantial part based on a third party appraisal. There is no tentative ruling, but the parties should be prepared to address the status of those things.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following issues:
Valuation dispute
The parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through
8:30 AM
appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
Settlement
The parties should address whether this court should continue this matter to provide the parties with an opportunity to engage in settlement negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anna Kusnier Represented By Julie J Villalobos
Movant(s):
Anna Kusnier Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 3/8/18
Docket 20
Tentative Ruling for 4/5/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/8/18 hearing, this court continued the matter at the IRS' request for more time to evaluate the debtor's proposal. There is no tentative ruling, but the parties should be prepared to address where this matter stands.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/8/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the motion, the opposition (dkt. 21) and the reply (dkt. 27).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Movant(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 03/08/18
Docket 32
Tentative Ruling for 4/5/18:
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Supplemental Declaration of Kelving J. Lo In Support of Debtor's Objection to Claim No. 1 (the "Lo Declaration") (dkt. 45).
Reasons: The tentative ruling is to grant Debtor's objection and disallow Cavalry SPV I, LLC's Claim No. 1 in its entirety. Pursuant to the Lo Declaration, counsel may not charge more than $500 in fees for all services provided in connection with the claim objection.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/8/18:
Continue to 4/5/18 at 8:30 a.m. to address the following issues. Appearances are not required on 3/8/18.
8:30 AM
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that counsel for the debtor may be charging the bankruptcy estate (and the debtor) more than it would cost simply to pay the projected distribution to the claim. No later than 3/15/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection (so as not to further waste the time of this Bankruptcy Court, the claimant, and any other parties in interest in addressing this matter).
Counsel is not expected to charge any fees on this matter. This Bankruptcy Court presumes that counsel will not charge any fees on this matter (including all past, present and future work related to this claim objection) and will return any fees that might be (or might have already been) awarded relative to this matter. If that is incorrect, then counsel must appear at the continued hearing and argue why fees are appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
8:30 AM
Debtor(s):
Sunny H Luong Represented By Michael Y Lo
Joint Debtor(s):
Tiffany Ly Represented By
Michael Y Lo
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 03/08/18
Docket 13
Debtor(s):
Melissa Michelle Springer- Represented By
Rabin J Pournazarian
Movant(s):
Melissa Michelle Springer- Represented By
Rabin J Pournazarian
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
NONE LISTED -
11:00 AM
Docket 0
NONE LISTED -
2:00 PM
fr. 2/22/18, 03/20/18
Docket 21
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
B&B Liquidating, LLC Represented By Brian L Davidoff Brian L Davidoff
10:00 AM
fr. 3/20/18
Docket 132
Tentative Ruling for 4/9/18:
Please see the tentative ruling for the status conference in the Checkmate
case (calendar no. 2, 4/9/18 at 10:00 a.m.).
Revised Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (dkt. 1.1, 3/20/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the objection (dkt. 140).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Movant(s):
Checkmate King Co., LTD Represented By Robert M Aronson
10:00 AM
10:00 AM
Docket 1
Tentative Ruling for 4/9/18:
Appearances required
Current issues
Motion to approve settlement with Fresco Parties (dkt. 132). At the hearing on 3/20/18, this Court's oral tentative ruling was to grant the motion, but this Court was persuaded to continue the hearing to this date to allow time for the parties to meet and confer about perceived ambiguities and practical concerns raised by the Community Bank. The parties should be prepared to address whether the amended settlement agreement (dkt. 157) adequately addresses the issues raised by Community Bank on the record at the 3/20/18 hearing.
In addition, the parties are directed to address the following issue. The "Release by Debtors" in the amended agreement (dkt. 157, Ex.A, p.3, para.ii.) provides that the debtors release the debtors. Is that intentional, or did the parties intend to provide that the debtors release the Fresco Parties?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: previously scheduled for 4/10/18 at 2:00 p.m., but per the tentative ruling for that date this is likely to be continued to 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/20/18:
Appearances required.
Current issues: settlement motion (dkt. 132). This Court intends to provide an oral tentative ruling at the start of the hearing.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
This court anticipates posting a tentative ruling at a later time.
10:00 AM
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the
10:00 AM
apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
10:00 AM
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a
10:00 AM
later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order,
10:00 AM
dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
10:00 AM
Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
Docket 10
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether this court should grant Checkmate's request for an expedited hearing and issue an order granting a temporary restraining order and order the immediate turnover of the Collateral pursuant to Checkmate's claim and delivery action.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Pro Se
George Tyler Fower Pro Se Siemens Medical Solutions USA Inc Pro Se
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
10:00 AM
Docket 137
Tentative Ruling for 4/9/18:
Please see the tentative ruling for the status conference in the Sakurai case (calendar no. 4, 4/9/18 at 10:00 a.m.).
Revised Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (dkt. 2.1, 3/20/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the objection (dkt. 143).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
10:00 AM
Movant(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt Nicholas W Gebelt Nicholas W Gebelt
Akemi Sakurai Represented By Nicholas W Gebelt Nicholas W Gebelt
10:00 AM
Docket 1
Tentative Ruling for 4/9/18:
Appearances required.
Current issues
Motion to approve settlement with Fresco Parties (dkt. 137). At the hearing on 3/20/18, this Court's oral tentative ruling was to grant the motion, but this Court was persuaded to continue the hearing to this date to allow time for the parties to meet and confer about perceived ambiguities and practical concerns raised by the Community Bank. The parties should be prepared to address whether the amended settlement agreement (dkt. 159) adequately addresses the issues raised by Community Bank on the record at the 3/20/18 hearing.
In addition, the parties are directed to address the following issue. The "Release by Debtors" in the amended agreement (dkt. 159, Ex.A, p.3, para.ii.) provides that the debtors release the debtors. Is that intentional, or did the parties intend to provide that the debtors release the Fresco Parties?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: previously scheduled for 4/10/18 at 2:00 p.m., but per the tentative ruling for that date this is likely to be continued to 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required.
Current issues
February MOR (dkt. 145). Pursuant to the Amended and Extended Stipulation for Use of Cash Collateral between Checkmate and Community Bank (17-22648, dkt. 114, p.3, paragraph 5, dkt. 127), to the extent Checkmate has insufficient funds to pay Community Bank $14,000 in monthly adequate protection payments, this court authorized the Sakurais to make that payment (dkt. 119, 131). However, Checkmate's February MOR (dkt. 142) reflects only a single payment to Community Bank on 2/22/18 (p. 2). The debtors should be prepared to address why they gave an additional
$14,000 to Checkmate without obtaining court authorization.
Plan/Disclosure Statement. If this court approves the settlement with the Fresco Parties (dkt. 132), the tentative is to set a hearing on 5/8/18 at 1:00 p.m. for approval of the plan and disclosure statement for dissemination.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
10:00 AM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
10:00 AM
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
10:00 AM
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
10:00 AM
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
10:00 AM
Status Report (dkt. 42): The debtors' status report fails to suggest
any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
10:00 AM
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By
10:00 AM
Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
10:00 AM
FEDERAL NATIONAL MORTGAGE ASSOC
vs DEBTOR
Docket 31
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Natasha Ellis Represented By
Andy C Warshaw
Movant(s):
Federal National Mortgage Represented By Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 68
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Dominick Rolland Atkins Represented By Matthew D Resnik
S Renee Sawyer Blume
Movant(s):
Ditech Financial LLC Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 83
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief applicable in future bankruptcy cases. Deny the request for relief under 11 U.S.C. 362(d)(4) for lack of cause shown.
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ladonna L Flores Represented By
Anthony Obehi Egbase Crystle J Lindsey Adaure C Egu
Edith Walters
W. Sloan Youkstetter
Movant(s):
Nationstar Mortgage, LLC. Represented By Bill Taylor Michael Daniels
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CENTRAL MORTGAGE CO
vs DEBTOR
Docket 50
- NONE LISTED -
Debtor(s):
Contrano Faye Evans Represented By Mark J Markus
Movant(s):
Central Mortgage COmpany DBA Represented By
Vanessa H Widener
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SETERUS, INC.
vs DEBTOR
Docket 70
- NONE LISTED -
Debtor(s):
Ronnie Christopher Brooks Represented By
Raj T Wadhwani
Joint Debtor(s):
Tiffany Leigh Brooks Represented By
Raj T Wadhwani
Movant(s):
Seterus, Inc., as the authorized Represented By Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 85
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 87).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bradley Leo Richards Represented By
Michelle A Marchisotto Sundee M Teeple Cynthia L Gibson
Craig K Streed
Joint Debtor(s):
Guadalupe Richards Represented By
Michelle A Marchisotto Sundee M Teeple
10:00 AM
Movant(s):
Cynthia L Gibson Craig K Streed
DEUTSCHE BANK NATIONAL Represented By
Matthew R. Clark III Sean C Ferry
Keith Labell
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 159
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 161).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Patricia Ann McCullough Represented By
Michelle A Marchisotto Michael Smith
Craig K Streed Cynthia L Gibson
Movant(s):
US Bank National Association Represented By Sean C Ferry
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK NA
vs DEBTOR
Docket 68
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Lenda Ruth Potts Represented By William G Cort
Movant(s):
Wells Fargo Bank N.A. Represented By Yadira P Delgado Rachelle M Ellis Jessica L Carter
Deborah L Rothschild Melissa Phipps Kristin C Rawlings Rosemary Allen Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ho Seong Yoo Represented By Stephen S Smyth William J Smyth
Joint Debtor(s):
Mi Young Yoo Represented By Stephen S Smyth William J Smyth
Movant(s):
Ditech Financial LLC fka Green Represented By
Darlene C Vigil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA
vs DEBTOR
Docket 31
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 33).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dedrick Gates Represented By Thomas B Ure
Movant(s):
HSBC Bank USA, National Represented By Merdaud Jafarnia John Chandler
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 24
- NONE LISTED -
Debtor(s):
Jeffrey Ralph Sr. Represented By Stephen S Smyth
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 49
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ana Rosa Silva Represented By George J Paukert
Movant(s):
REVERSE MORTGAGE Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 22
Grant in part and deny in part as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Deny the request for relief pursuant to 11 U.S.C. 362(d)(4) because there is no showing that the unauthorized transfer by interspousal deed approximately two years prior to this bankruptcy case was part of a scheme to hinder, delay, or defraud creditors.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
10:00 AM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Astrid H. Estrada Represented By William G Cort
Movant(s):
Wilmington Savings Fund Society, Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 9
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378- NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
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possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Martin Lugo Hernandez Represented By Omar Zambrano
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
STRATEGIC EMERGING ECONOMICS, INC.
vs DEBTOR
Docket 53
- NONE LISTED -
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
Movant(s):
Strategic Emerging Economics, Inc. Represented By
David I Brownstein
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 9
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2), and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378- NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws
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governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Moung Yun Pro Se
Movant(s):
Wilmington Savings Fund Society, Represented By
Angie M Marth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
[Debtor dismissed 3/12/18]
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
10:00 AM
If this order is duly recorded in compliance with applicable State laws
governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles Reid Represented By
Joshua L Sternberg
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 12
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378- NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this
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order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Herrera Pro Se
Joint Debtor(s):
Anais Cabrera Pro Se
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PROF-2013-S3 LEGAL TITLE TRUST IV
vs DEBTOR
Docket 16
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378- NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
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possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ana M Cabrera Pro Se
Movant(s):
PROF-2013-S3 Legal Title Trust IV, Represented By
Robert P Zahradka
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
LEA TEDROWE, TRUSTEE OF THE
1995 LEA L. TEDROWE REVOCABLE TRUST
vs DEBTOR
Docket 22
Tentative Ruling for 4/10/18:
Grant request for future in rem relief for the reasons stated below. Appearances are not required on 4/10/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reason: This matter was continued from 3/20/18 on shortened notice on the condition that Movant serve the motion and notice of this continued hearing on the original borrowers (Kari Moulthrop and Jason Waltrip) by 3/21/18. On 4/3/18, Movant filed an amended proof of service reflecting service on the original borrowers on 3/21/18 (dkt. 34).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378- NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
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For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Grant in part and continue in part to 4/10/18 at 10:00 a.m. as set forth below. Appearances are not required on 3/20/18.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower").
Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due
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process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: Kari Moulthrop and Jason Waltrip.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ana M Cabrera Pro Se
Movant(s):
Lea Tedrowe Represented By
Sally A Williams
10:00 AM
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
GATEWAY ONE LENDING & FINANCE
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Roberto Roman Martinez Represented By Charles Shamash
Movant(s):
Gateway One Lending & Finance Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
GATEWAY ONE LENDING & FINANCE
vs DEBTOR
Docket 35
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ray Valdiviezo Represented By
R Grace Rodriguez
Joint Debtor(s):
Michele E. Valdiviezo Represented By
R Grace Rodriguez
Movant(s):
Gateway One Lending & Finance Represented By
Austin P Nagel
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
VW CREDIT, INC
vs DEBTOR
Docket 72
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order and/or (c) the debtor's request that this Court prohibit the movant from charging the debtors or their account for any attorney fees connected with the motion and/or deny the motion (see the debtors' response, dkt. 76).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ananda Chandrasekera Alahakoon Represented By
Jeffrey J Hagen
Joint Debtor(s):
Chitra Ranjini Niyarepola Represented By Jeffrey J Hagen
10:00 AM
Movant(s):
VW Credit, Inc., as servicer for VW Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
VW CREDIT, INC.
vs DEBTOR
Docket 74
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order and/or (c) the debtor's request that this Court prohibit the movant from charging the debtors or their account for any attorney fees connected with the motion and/or deny the motion (see the debtors' response, dkt. 77).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ananda Chandrasekera Alahakoon Represented By
Jeffrey J Hagen
Joint Debtor(s):
Chitra Ranjini Niyarepola Represented By Jeffrey J Hagen
10:00 AM
Movant(s):
VW Credit, Inc., as servicer for VW Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
VW CREDIT, INC.
vs DEBTOR
Docket 21
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
William Charles Arkwright Represented By Michael E Clark
Movant(s):
VW Credit, Inc., servicing agent for Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Amador Aidan Ramos Cruz Pro Se
Movant(s):
Deutsche Bank National Trust Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
VALERIE LEUNG
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to the legal analysis in In re Vazquez
(case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14- bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
10:00 AM
possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Donecia Augustus Pro Se
Movant(s):
Valerie Leung Represented By Allan D Sarver
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
10:00 AM
or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 11
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
10:00 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Molly Flora Wales Represented By Devin Sawdayi
Movant(s):
Molly Flora Wales Represented By Devin Sawdayi
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 10
Appearances required. The tentative ruling is to deny the motion for the reasons stated in the opposition (dkt. 19).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rita Williams Minor Represented By Matthew D Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 9
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
10:00 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cheryl Lynette Mitchell Represented By Peter M Lively
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 35
- NONE LISTED -
Debtor(s):
Alicia M. Olivero Ramirez Represented By Kenumi T Maatafale
Movant(s):
Alicia M. Olivero Ramirez Represented By Kenumi T Maatafale
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
from the automatic stay under 11 U.S.C. section 362
Docket 59
Grant on the following conditions: (a) the debtor must tender the $26,278.75 cashier's check (dkt. 65, Ex.A) at the hearing (or as otherwise directed by the creditor) and (b) the debtor must pay any additional shortfall and the creditor's attorney fees and other costs and expenses as set forth below. Appearances required.
Analysis: The tentative ruling is that (1) the debtor has established sufficient excuses both for his own neglect and for the neglect of his counsel, (2) the debtor has presented sufficient evidence of a substantial equity cushion that adequately protects the creditor, and (3) equitable considerations apply both to relief under Rule 9024 (Fed. R. Bankr. P.) and to adequate protection (11
U.S.C. 361 & 362(d)) and it would be inequitable to require the creditor essentially to make a forced loan by incurring attorney fees and other costs and expenses without being reimbursed within a reasonable time. Accordingly the tentatitive ruling is to set a continued hearing on 5/22/18 at 10:00 a.m. with a standard briefing schedule to determine the dollar amount that the debtor must reimburse as follows.
Specifically, the tentative ruling is to set a deadline of 4/24/18 for the creditor to file declaration(s) setting forth any shortfall in the debtor's cure payment plus its reasonable attorney fees and all other costs and expenses attributable to the debtor's delay in payment (late fees, foreclosure trustee's fees, etc.), with a deadline of 5/1/18 for any objection by the debtor to those dollar amounts, and a deadline of 5/8/18 for any reply. At the continued hearing this Court will resolve any disputes as to the total dollar amount, after which the debtor will be obligated to repay that dollar amount over six months pursuant to a standard adequate protection order.
Key documents reviewed (in addition to motion papers): the creditor's opposition (dkt. 63-64) and the debtor's reply (dkt. 65).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kwame Boakye Represented By William J Smyth Stephen S Smyth
Movant(s):
Kwame Boakye Represented By William J Smyth Stephen S Smyth
Trustee(s):
Kathy A Dockery (TR) Represented By William J Smyth
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 105
Tentative Ruling for 4/10/18 (same as for 2/27/18, 1/9/18): Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling. This matter has been continued a number of times to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required. There is no tentative ruling. At the hearing on 10/3/17, this court continued the matter to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
Tentative Ruling for 10/3/17:
10:00 AM
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 107).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Partrick I. Ikhifa Represented By
Anthony Obehi Egbase Onyinye N Anyama Edith Walters
W. Sloan Youkstetter
Movant(s):
Wilmington Savings Fund Society, Represented By
Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 38
Tentative Ruling for 4/10/18 (same as for 3/20/18 except encouraging telephonic appearances):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Genaro Lopez Represented By
David Samuel Shevitz
Joint Debtor(s):
Martha Lopez Represented By
David Samuel Shevitz
10:00 AM
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 73
Appearances required. On 2/22/18, the parties stipulated to continue the hearing to this date to allow debtor time to complete a refinance (reverse mortgage) of the property (dkt. 84, 86). There is no tentative ruling, but the parties should be prepared to address (a) what the status of the refinance is,
(b) whether the alleged arrears have been brought current and/or (c) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Chandra Mohan Roy Represented By Tamar Terzian
Movant(s):
Wells Fargo Bank, NA, as Trustee, Represented By
Daniel K Fujimoto Caren J Castle
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST, NA vs
DEBTOR
Docket 39
Debtor(s):
Myrna O. Burton Represented By
David Samuel Shevitz
Movant(s):
U.S. Bank Trust, N.A., as Trustee for Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
2nd CHANCE MORTGAGES INC.
vs DEBTOR
Docket 22
Tentative Ruling for 4/10/18:
Grant, because the debtor's amended plan (dkt. 33) does not include the terms discussed at the hearing on 3/6/18. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required. There is no tentative ruling but the parties must address the issues described below. In addition, the movant's counsel is directed to address why his reply (dkt. 26) has numerous typographical errors that make it difficult to read, and what steps he will take to fix that problem in future (in this case and other cases).
Analysis and tentative ruling: As stated in the debtor's response (dkt. 25) his proposed chapter 13 plan apparently contemplates full payment of the movant's claim during the term of the plan in Class 3A, and although the "boilerplate" language in that plan speaks of "bifurcation" it appears that the debtor intends to treat the entire claim as secured and pay it in full. But there are problems with treating the debtor's plan payments as the equivalent of adequate protection payments.
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Specifically: (a) the principal dollar amount owed to the movant as
listed in the plan is slightly less than what is listed in the motion papers, (b) the debtor does not provide any rate of interest of the movant's claim, and (c) the order of payment of claims under the plan (p.4 of the plan) provides that before the movant receives any distributions from the Chapter 13 Trustee the debtor's attorney and the Chapter 13 Trustee's fees will be paid, which means that the debtor will fall behind in payments to the movant before catching up, and that exposes the movant to the risk that the debtor will never catch up (if the case is converted or dismissed or if the debtor has a reduction in disposable income). Counsel for the debtor must address at the hearing how the debtor proposes to address the foregoing shortfalls.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Luis Macias Represented By Luis G Torres
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
US BANK TRUST, NA
vs DEBTOR
Docket 42
Tentative Ruling for 4/10/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing on the motion, this court continued the hearing at the request of the parties to provide them additional time to negotiate the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
10:00 AM
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hortencia A. Maltez Represented By William G Cort
Movant(s):
US Bank Trust N.A., as trustee of Represented By
Michelle R Ghidotti James F Lewin Renee M Parker
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 34
Tentative Ruling for 4/10/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 3/20/18 this court continued this matter at the parties' request to allow time for them to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 36).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodney Dean McKinney Represented By Kevin T Simon
Movant(s):
U.S. Bank National Association Represented By Jenelle C Arnold Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
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TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 32
Tentative Ruling for 4/10/18 (same as for 3/20/18 except encouraging telephonic appearances):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jon Paul Jimenez Represented By Michael E Clark Barry E Borowitz
Movant(s):
Toyota Motor Credit Corporation Represented By
10:00 AM
Trustee(s):
Austin P Nagel
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICAN FIRST CREDIT UNION
vs DEBTOR
Docket 30
Debtor(s):
Cesar E. Hernandez Represented By
James D. Hornbuckle
Joint Debtor(s):
Patricia C. Hernandez Represented By
James D. Hornbuckle
Movant(s):
American First Credit Union Represented By James R Selth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 31
Debtor(s):
Everett Fred Sanchez Represented By Thomas B Ure
Movant(s):
Wells Fargo Bank, N.A. Represented By Darlene C Vigil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LEA TEDTOWE
vs DEBTOR
Docket 35
Tentative Ruling for 4/10/18:
Grant request for future in rem relief for the reasons stated below. Appearances are not required on 4/10/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reason: This matter was continued from 3/20/18 on shortened notice on the condition that Movant serve the motion and notice of this continued hearing on the original borrowers (Kari Moulthrop and Jason Waltrip) by 3/21/18. On 4/3/18, Movant filed an amended proof of service reflecting service on the original borrowers on 3/21/18 (dkt. 48).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378- NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
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possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Grant in part and continue in part to 4/10/18 at 10:00 a.m. as set forth below. Appearances are not required on 3/20/18.
The automatic stay does not apply.
This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any
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future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower"). Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: Kari Moulthrop and Jason Waltrip.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Robert Garviria Pro Se
Joint Debtor(s):
Adriana Juarez Pro Se
Movant(s):
Lea Tedrowe Represented By
Sally A Williams
Trustee(s):
Wesley H Avery (TR) Pro Se
11:00 AM
Docket 27
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Antonio G. Ramos Jr. Represented By Julie J Villalobos
Joint Debtor(s):
Marietta O. Ramos Represented By Julie J Villalobos
Movant(s):
Timothy Yoo (TR) Pro Se
Trustee(s):
Timothy Yoo (TR) Pro Se
11:00 AM
Docket 41
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Veronica Cheryl Weathers Represented By Bert Briones
Movant(s):
Veronica Cheryl Weathers Represented By Bert Briones Bert Briones
Trustee(s):
Elissa Miller (TR) Pro Se
11:00 AM
Docket 51
Appearances required. There is no tentative ruling, but the parties should be prepared to address the debtor's opposition (dkt. 52).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Heloise Justine Mitchell Represented By Brad Weil
Movant(s):
Heloise Justine Mitchell Represented By Brad Weil
Trustee(s):
John J Menchaca (TR) Pro Se
11:00 AM
Docket 118
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashly Kyle Reyes Cabral Represented By Deepalie M Joshi
Trustee(s):
Timothy Yoo (TR) Represented By Elissa Miller Jeffrey L Sumpter
11:00 AM
Docket 116
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashly Kyle Reyes Cabral Represented By Deepalie M Joshi
Movant(s):
Timothy Yoo (TR) Represented By Elissa Miller Jeffrey L Sumpter
Trustee(s):
Timothy Yoo (TR) Represented By Elissa Miller Jeffrey L Sumpter
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Adv#: 2:14-01462 Simon v. Marshall
4/19/16, 5/25/16, 5/27/16, 6/21/16, 07/27/16
11/29/16, 03/21/17, 06/27/17, 8/22/17, 10/17/17,
12/5/17, 03/06/18
Docket 1
Tentative Ruling for 4/10/18:
Appearances are not required. A judgment (adv. dkt. 268) has been entered pursuant to the parties' settlement, and the tentative ruling is to excuse counsel's previous non-appearances and discharge this Court's order to show cause why counsel should not be sanctioned for such non-appearance (adv. dkt. 258, 264). There do not appear to be any other reasons for requiring further proceedings in this adversary proceeding.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. On 10/18/17, this court issued an Order to Appear and Show Cause Why the Court Should Not Sanction Attorneys for Non- Appearance (adv. dkt. 258, "Order to Show Cause"). Among other things, the
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Order to Show Cause directed the plaintiff’s counsel of record Stephen L. Burton, Esq. to: (a) serve a copy of the Order to Show Cause on (1) Douglas
A. Crowder, Esq. (2) the debtor, and (3) co-counsel Rene Tovar, Esq. within seven days of entry of the order, i.e. by 10/25/17, and (b) file a proof of service by 10/26/17.
The Order to Show Cause was served on Mr. Burton via first class U.S. mail on 10/20/17 at his address of record (dkt. 260). As of the posting of this tentative ruling, Mr. Burton has not filed a proof of service evidencing compliance with the Order to Show Cause. Accordingly, Mr. Burton should be prepared to address why this court should not impose sanctions.
In addition, all other counsel have failed to respond to the Order to Show Cause, nor have they filed substitutions of counsel, or otherwise addressed this matter. They should be prepared to address why this should not also be sanctioned.
In addition, the parties should be prepared to address the issues noted in the tentative ruling for 10/17/17 (reproduced below).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the status of this case and the appeal regarding the judgment in favor of the debtor under 11 U.S.C. 727 (adv. dkt. 237, 238) presently pending before the United States District Court for the Central District of California (see adv. dkt. 244, 252).
If you do not appear, and the matter is not adequately resolved by consent,
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then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Continue to 10/17/17 at 11:00 a.m. to provide the parties time to proceed with the appeal regarding the judgment in favor of the debtor under 11 U.S.C. 727 (adv. dkt. 237, 238) presently pending before the United States District Court for the Central District of California (see adv. dkt. 244, 252). (This matter previously was continued from 6/27/17 to 8/22/17. See dkt. 255.) Appearances are not required on 8/22/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 3/21/17:
Continue to 6/27/17 at 11:00 a.m. to provide the parties time to proceed with the appeal regarding the judgment in favor of the debtor under 11 U.S.C. 727 (adv. dkt. 237, 238) presently pending before the United States District Court for the Central District of California (see adv. dkt. 244, 252). Appearances are not required on 6/27/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 11/29/16:
Continue to 3/21/17 at 11:00 a.m. to provide the parties time to proceed with the appeal regarding the judgment in favor of the debtor under 11 U.S.C. 727 (adv. dkt. 237, 238) presently pending before the Bankruptcy Appellate Panel (see adv. dkt. 244). Appearances are not required on 11/29/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
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Debtor(s):
John Jay Marshall Represented By Richard H Gibson Stephen L Burton Douglas A Crowder
Defendant(s):
John Marshall Represented By Richard H Gibson Stephen L Burton
Plaintiff(s):
Randy Simon Represented By Stephen L Burton David R. Weinstein
Trustee(s):
Richard K Diamond (TR) Represented By
Uzzi O Raanan ESQ Steven J Schwartz
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Adv#: 2:14-01462 Simon v. Marshall
Docket 258
Tentative Ruling for 4/10/18:
Please see the tentative ruling for the adversary proceeding status conference (calendar no. 6, 4/10/18 at 11:00 a.m.).
Tentative Ruling for 12/19/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised by this court in its Order to Show Cause (dkt. 258).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Please see the tentative ruling for the continued Status Conference (calendar no. 12, 12/5/17 at 11:00 a.m.).
Debtor(s):
John Jay Marshall Represented By Richard H Gibson Stephen L Burton Douglas A Crowder
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Defendant(s):
John Marshall Represented By Richard H Gibson Stephen L Burton
Plaintiff(s):
Randy Simon Represented By Stephen L Burton David R. Weinstein
Trustee(s):
Richard K Diamond (TR) Represented By
Uzzi O Raanan ESQ Steven J Schwartz
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Adv#: 2:18-01025 Clarke v. Aouragh
Docket 1
- NONE LISTED -
Debtor(s):
Bianca L. Clarke Represented By
D Justin Harelik
Defendant(s):
Amir Aouragh Represented By Kathleen P March
Plaintiff(s):
Bianca L. Clarke Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:18-01030 Construction Laborers Trust Funds for So Calif v. GRAYSON
Docket 1
Continue to 4/17/18 at 11:00 a.m. to be heard concurrently with defendant's motion to dismiss. Appearances are not required on 4/10/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
Defendant(s):
RICKY TYRONE GRAYSON Represented By Ryan A Stubbe
Plaintiff(s):
Construction Laborers Trust Funds Represented By
Marsha M Hamasaki Jeffry D Sackman
11:00 AM
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
1:00 PM
Docket 9
Appearances required by counsel for the debtor and by the debtor herself.
Current issues. This Court has reviewed the debtor's status report (dkt. 19), the response (dkt. 23) filed by creditor Strategic Acquisitions, Inc. ("Strategic"), and the other filed documents and records in this case.
Prior failed case. The debtor's husband's prior case (no. 17-
bk-19071-NB) was a chapter 13 case that was dismissed on 10/13/17 with a 180-day bar to re-filing for failure to make plan payments or appear at the meeting of creditors (11 U.S.C. 341(a)).
Budget Motion (dkt. 21). First, as Strategic points out, the debtor's bankruptcy Schedule I, line 8a, lists $6,220/mo. of net income from "rental property and from operating a business, profession, or farm" but fails to follow the instructions to "[a]ttach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total net monthly income." In addition, as Strategic points out, the debtor may be failing to account for the payment of real property taxes and perhaps also income taxes, and therefore it is not at all clear how the debtor will be able to fund any plan of reorganization.
The tentative ruling is to set a deadline of 4/17/18 for the debtor to file declaration(s) (i) attaching the statement(s) required by the line 8a instructions, (ii) providing complete explanations of any other sources of income (e.g., how long does the debtor anticipate continuing to receive disability payments? does the debtor ancticipate returning to employment, and if so, when?), (iii) explaining whether the debtor is accounting for real estate taxes and income taxes, (iv) explaining how the debtor anticipates generating sufficient income to fund a plan of reorganization, and (v) attaching historical monthly accounts for the period of one year prepetition through 3/31/18.
Second, bankruptcy Schedule J (attached to the budget motion), lines 17c and 17d, list payments to Strategic of $1,750/mo. and to Ropers Majeski
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of $500/mo. The tentative ruling is to treat those payments as adequate protection payments on account of claims that appear to be secured claims, conditioned on return of such payments in the event that such security interests or claims are avoided or otherwise disallowed.
Third, notice of the motion and the deadline for objections is inadequate. The proof of service fails to attach a service list of creditors, and the debtor checked the box directing creditors to file any oppositions within 14 days' from the date of the proof of service (3/27/18), which would be the date of this hearing. Nevertheless, despite the lack of adequate service or notice, the tentative ruling is that on the present record it appears that it would be more prejudicial to creditors to prevent the debtors from making their proposed expenditures than to permit those expenditures, so the tentative ruling is to grant the budget motion on an interim basis, subject to any objections at a continued hearing simultaneous with the continued status conference date set forth below. This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006, Fed. R. Bankr. P.), but that date is conditioned upon the debtor serving the motion on the entire creditor matrix the day after the current hearing date.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: File by 6/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time). This Court is aware that the debtor has requested a much later deadline (dkt. 19, p. 5), but this Court is not aware of any reason why so much time is needed. The debtor should be negotiating with secured creditors and other key constituencies already.
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Peta Elizabeth Gorshel Represented By William Samoska
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Docket 21
Tentative Ruling for 4/10/18:
Please see the tentative ruling for the status conference (calendar no. 1, on 4/10/18 at 1:00 p.m.).
Debtor(s):
Peta Elizabeth Gorshel Represented By William Samoska
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Docket 13
Please see the tentative ruling for the status conference (calendar no. 4, 4/10/18 at 1:00 p.m.).
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
1:00 PM
Docket 12
Grant the motion (docket no. 12) on an interim basis, subject to the conditions set forth below, with a final hearing on 5/1/18 at 1:00 p.m., and a deadline of 4/11/18 for the movant to file and serve a notice of the final hearing.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
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Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition
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date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
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Docket 7
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Failure to serve order. This Court's order setting this status conference (dkt. 6) directed the debtor to serve a copy of that order on all parties in interest no later than 14 days prior to this status conference. No proof of service appears on the docket. The tentative ruling is to set a deadline of 4/11/18 for the debtor to effect such service, with a caution to counsel that in future such failure may result in sanctions.
Budget motion (dkt. 13). Grant on an interim basis, with a final hearing on the same date at the continued status conference set forth below.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
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& Jones LLP for approval and payment of compensation and reimbursement of expenses for the period of August 22, 2017 through December 31 2017
Docket 258
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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fr. 3/20/18
Docket 239
Continue to 4/17/18 at 2:00 p.m. to permit the parties to engage in settlement discussions. Appearances are not required on 4/10/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Docket 142
Tentative Ruling for 4/10/18:
Please see the tentative ruling for the case status conference (calendar no. 9, 4/10/18 at 1:00 p.m.).
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
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Docket 1
Tentative Ruling for 4/10/18:
Please see the tentative ruling for the case status conference (calendar no. 9, 4/10/18 at 1:00 p.m.).
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
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Docket 1
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Service of voting package. The proof of service (dkt. 140) states that the voting package has been served on "Secured and Twenty Largest Unsecured Creditors." (Emphasis added.) The voting package should have been served on all creditors. Is the proof of service in error? If so, the tentative ruling is to set a deadline of 4/11/18 for the debtor to file a corrected proof of service. If not, counsel for the debtor should be prepared to address
(i) the dates and procedures for re-balloting and a continued hearing and (ii) not charging attorney fees for correcting this issue.
Disclosure statement (dkt. 134) and plan (dkt. 135), and motion to modify plan (dkt. 142). The debtor has not filed any ballot summary. If sufficient ballots have been received to vote in favor of confirmation by the requisite majorities then the tentative ruling is to approve the disclosure statement on a final basis, grant the motion to modify the plan, and confirm the plan as modified. All of the foregoing is contingent, however, on the debtor filing a sufficient ballot summary no later than 4/11/18.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 7/17/18 at 1:00 p.m. Status report due 7/9/18.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 127) and Disclosure Statement (dkt. 126).
Impairment - Class 2B. The Plan lists Class 2B as unimpaired - is it?
Impairment - Class 4A. The Plan does not specify whether Class 4A is impaired.
DIP Financing. Class 2C appears to consist of the debtor's contemplated postpetition DIP borrowing (dkt. 111, 121). First, classes under the Plan are reserved for prepetition debts, whereas repayment of postpetition DIP financing should be reflected in cash flow projections (Ex.C) (this is not just an academic issue: for example, Classes vote; DIP lenders do not).
Second, Endnote 2C (in Ex.H) appears to relate to this "Class" of DIP fiancing, and it appears to state that the terms of that financing are unknown ("Debtors will have full and accurate loan information as the loan is processed"). The debtors' counsel must address at the hearing whether there is any reason why the Plan cannot be updated to reflect the actual financing terms, which would eliminate the need for any such Endnote.
Stipulation with US Bank. The Plan should attach a copy of the Stipulation (dkt. 124) with creditor U.S. Bank N.A. (as trustee); Wells Fargo Home Mortgage as servicer (collectively, "US Bank"), as it may be
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modified (see below re possible amendments to that Stipulation). See dkt. 129 (limited objection of US Bank).
US Bank's concerns (dkt. 129). This Court's posted procedures (available at www.cacb.uscourts.gov, under Judge Bason) provide in part:
§ 362: Automatic Stay. (1) Stipulations. Generally, the judge will not approve a stipulation for relief from stay/adequate protection order (“APO”) that purports to be automatically effective ... because there might be equity in the property [Emphasis altered.]
Consistent with this limitation, US Bank agreed to an Adequate Protection Order ("APO") which does not provide for any automatic termination of the automatic stay. Instead it provides (in the APO attachment, at paragraph 6.b.) that in the event of a default:
[US Bank] may file and serve a declaration under penalty of perjury specifying the default, together with a proposed order terminating the stay, which the court may grant without further notice or hearing.
More recently, however, US Bank entered into its Stipulation with the debtors (dkt. 124) which not only includes the above-quoted language about what will happen in the event of a pre-confirmation default but goes on to add another clause. It states:
5. [US Bank] may file and serve a declaration under penalty of
perjury specifying the default, together with a proposed order Terminating the Automatic Stay, which the Court may grant without further notice or hearing, and Creditor (and/or its servicer) may commence any and all action necessary to obtain complete possession of the Subject Property without further notice,
order, or proceeding of this Court. [Emphasis added.] US Bank argues (dkt. 129, p.6:3-12) that this language in the
Stipulation was "taken from" the APO (para. 6.b.), but this is not quite accurate: the emphasized language has been added. Does that additional language mean anything? US Bank now appears to argue that it means nothing - that "the intent was simply to maintain the status quo like it is under the APO" (dkt. 129, p.6:6).
This Court agrees: the emphasized language appears to be surplusage; but unfortunately it is arguably subject to a different interpretation. Because it is unusual for parties to add meaningless language
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to their stipulations, the emphasized language arguably could be read to mean that US Bank could "commence" all actions necessary to foreclose without any order of this court.
Because of this (and other) ambiguities in the Stipulation this Court added the following caveat in its order approving the Stipulation:
... notwithstanding anything in the Stipulation to the contrary, the automatic stay will not automatically terminate upon a default or conversion of this case except as to Debtors (i.e., no automatic termination as to the bankruptcy estate, so as to preserve any equity that might then exist in the property for the benefit of other creditors) [Dkt. 128, p.2:5-8, emphasis in original]
US Bank now requests "that the Order [approving the Stipulation] be amended to clarify that any pre-confirmation default shall be in accordance with the [Stipulation] at paragraph 5, or in the alternative, pursuant to the existing APO, paragraph 6(b)." Dkt. 129, p.6:10-12. This Court believes the simpler solution - both in this case and in all future cases - would be to delete the surplus language in paragraph 5 of the Stipulation. US Bank's counsel should be prepared to address whether they will agree to delete the surplus language in paragraph 5 of the Stipulation in this case and in all future stipulations in any case before this Court.
Similarly, paragraph 13 of the Stipulation ends by stating that in the event the debtors' case is dismissed or converted then not only shall US Bank retain its lien securing the full dollar amount it is owed (less any payments received) but also "the Automatic Stay shall be terminated without further notice, order or proceeding of the Court." (Emphasis added.) US Bank has now agreed to delete this emphasized language. See dkt. 129,
pp.5:26-6:2. Again, US Bank's counsel should be prepared to address whether they will delete this language in all future stipulations in cases before this Court.
Another concern raised by US Bank is that this Court's language in the order approving the Stipulation (quoted above) appears to limit paragraph 6 of the Stipulation, which provides that upon confirmation of debtors' chapter 11 plan "the Automatic Stay shall be deemed terminated as to the Debtors and the estate" and US Bank can pursue its contractual remedies under the loan documents "without further notice, order, or proceeding of this Court." Dkt.
124, p.4:12-18. This Court did not intend to override that provision - the tentative ruling is that upon confirmation of a chapter 11 plan it is entirely
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appropriate to provide that the automatic stay no longer applies because then the parties have a revised contractual relationship - so US Bank is correct that the order approving the Stipulation is overbroad to the extent that the language added by this Court affects paragraph 6 of the Stipulation.
Based on all of the foregoing, the tentative ruling is that if US Bank will agree to amend its Stipulation in paragraphs 5 and 13 as set forth above (to delete the language about automatic termination of the automatic stay), and leave paragraph 6 unchanged, this Court will approve that Stipulation without the modification that is included in the current order approving the Stipulation. The debtor will need to attach the amended Stipulation to the Plan.
Note: The parties might wish to take the opportunity to review the Stipulation for any other provisions that would benefit from revision. For example, this Court notes that paragraph 13 of the Stipulation starts by providing that "[t]he terms of this Stipulation are contingent upon Debtors' confirming a Chapter 11 Plan." Dkt. 124, p.6:8-8. Read literally this would mean that the Stipulation's terms regarding pre-confirmation defaults (para. 5) are contingent upon confirmation, which makes no sense. Other provisions similarly do not appear to be intended to be contingent on confirmation (but it is up to the parties to decide if they wish to clarify such issues).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 127)/Disclosure Statement (dkt. 126)*: 2/27/18 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference, with a revised stipulation with US Bank attached, and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 4/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue this status conference to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtors' apparent need to amend the proposed plan in view of the recent withdrawal of their objection to the prior claim of the Internal Revenue Service ("IRS") in view of the IRS' amended claim (see dkt. 119);
the debtor's failure to file a brief status report (due 1/16/18 per the adopted tentative ruling for the 11/7/17 hearing, reproduced below); and
the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the federal government.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Continue to 1/23/18 at 1:00 p.m. to address the following issues. Appearances are not required on 11/7/17.
Reasons: This court is continuing the hearing in light of the response filed by the IRS (dkt. 105) and because (1) if the dollar amount owed to the IRS changes then changes also will be needed to the amended plan (dkt. 107) and amended disclosure statement (dkt. 106) and (2) although the debtor
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correctly deleted Endnotes 2, 2A, 2B and 2C from Exhibit H, the debtor forgot to delete the references to those (non-existent) endnotes on Exhibits A and E. No later than 1/16/18 the debtor is directed to file an amended plan to cure these issues, if possible, or alternatively a very brief status report (e.g., one or two sentence).
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/19/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Monthly Operating Report (dkt. 94). What is the $700 transfer for 8/31/17 (at p.4) entitled "money owed"? The debtor reports one missed payment to Wells Fargo in the amount of $2,167.68 (at p.10), as against onl y
$2,398.12 in her rental property account (p.11) and $1,404.57 in her personal account. Is the debtor losing money? Can the debtor propose a feasible plan of reorganization?
Plan (dkt.92) /Disclosure Statement (dkt. 91). (i) These documents are not signed by the debtors ("/s/" typed signatures are only permitted for limited categories of persons, such as registered CM/ECF users). (ii) The Disclosure Statement contemplates claim objections (dkt. 91, Ex.H, Endnotes 1-2). Why have these issues not been resolved by now? (iii) The Disclosure Statement's Endnotes 2A, 2B, 2C and 5 repeat (and/or misstate) the terms of the Plan. Those endnotes should be deleted. (iv) The Disclosure Statement's Ex.C (income/expenses) is divided into two periods, but the income and expenses appear to be identical in each period. Why should this not be a single period?
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
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Plan (dkt.92) /Disclosure Statement (dkt. 91)*: 10/24/17 deadline to file amended documents.
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Status Report. The debtor is using an outdated form. The current version is Local Form F 2081-1.1.CH11.STATUS.RPT.
Cash collateral motion (dkt. 30). Grant on a final basis, on the same terms as in the interim order (dkt. 58).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/5/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee).
Continued status conference: 9/19/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
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fr. 3/3/15, 3/31/15, 4/28/15, 5/26/15, 6/9/15, 7/7/15, 07/28/15, 9/1/15, 9/22/15, 11/17/15, 12/15/15,
1/19/16, 2/23/16, 3/22/16, 5/31/16, 7/19/16, 9/27/16,
11/29/16, 1/10/17, 4/25/17, 6/20/17, 10/17/17, 1/30/18
Docket 9
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 1:00 p.m. Appearances are not required on 4/10/18.
This court has reviewed the debtor's status report (dkt. 311) and monthly operating reports (dkt. 309, 310), and this court is not aware of other issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's status report (dkt. 304) and the notice (dkt. 307) filed by Bayview Loan Servicing, LLC ("Bayview"). The parties should be prepared to address the issues raised by those papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's post-confirmation status report (dkt. 298) and has no issues to raise sua sponte at this time. The tentative ruling is to continue this status conference to 1/30/18 at 1:00 p.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 10/17/17 at 1:00 p.m. in view of the debtors' status report (dkt. 292). Appearances are not required on 6/20/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/25/17:
Continue to 6/20/17 at 2:00 p.m., to provide the debtors with time to seek entry of a final decree in this case, or such other remedies as may be necessary or appropriate, in view of the confirmed Joint Chapter 11 Plan (dkt. 270) and the unopposed motions to approve the compromise with Butler Capital (dkt. 277-80). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative
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rulings").
Tentative Ruling for 1/10/17:
Continue to 4/25/17 at 2:00 p.m. Appearances are not required on 1/10/17.
Reasons: This court has issued its order confirming the debtors' Joint Chapter 11 Plan (dkt. 270) and this court is not aware of other issues that would warrant a status conference at this time.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
Tentative Ruling for 1/10/17:
Continue to 4/25/17 at 2:00 p.m. Appearances are not required on 1/10/17.
Reasons: This court has issued its order confirming the debtors' Joint Chapter 11 Plan (dkt. 270) and this court is not aware of other issues that would warrant a status conference at this time.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The tentative ruling, subject to any objections at the hearing and further subject to consideration of whether re-balloting is required, is to provide the debtors with one final opportunity to correct the issues set forth below with the disclosure statement (dkt. 250) and the debtors’ proposed plan (dkt. 249). The principal documents reviewed by this Court are the plan,
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disclosure statement, and supporting documents (dkt. 249-254), Butler Capital’s objection (dkt. 256), and the debtors’ reply (dkt. 257).
Sequence of property sales.
The sequence of property sales in Exhibit H of the Disclosure Statement is not clear. Do the properties have to sell in a particular order? Are the debtors obligated to sell whatever they can as soon as they can and/or in whatever sequence and combinations will maximize value and/or speed? The tentative ruling is that the debtors must clarify Exhibit H either to demonstrate the correct order of sale or that the plan does not require sale in a particular order.
Escrow Deadlines.
From this Court’s review of the amended Exhibit H, it appears that the debtors intend to have one year from the projected effective date of December 1, 2016 in which to open escrow, and if any properties that meet that condition later fall out of escrow, the debtors have sixty days to open a new escrow, with an outside period of 18 months from December 1, 2016 (or earlier, if an escrow is opened earlier) in which all escrows must close.
However, the way that this is written in the plan is difficult to understand. Particularly, Exhibit H, pp. 4:25-5:1, is unclear, especially because the projected effective date of the plan is not listed until Exhibit H, Page 10. The tentative ruling is that the debtors must revise the language in the plan to clarify these provisions.
Provisions for relief from default.
The sentence on p.5:14-19 regarding relief from default remains confusing. Is default exclusively tied to proceeds given to Bayview? Can other parties declare default? The tentative ruling is that these provisions must be revised to be written in "plain" english to better reflect the debtors' intention.
"Good cause" for relief from default.
The sentences on p.6:10-14 regarding the standard for cause for relief from default are confusing. The debtors list as a possible standard the same standard that would apply to a debtor showing adequate protection in defending against a motion for relief from the automatic stay, but then they state that alternative standards may be proposed by the parties or the Court, if the Court deems some other standard more reasonable under the circumstances. How would this court make that determination? The tentative ruling is that the debtors must clarify these provisions so they may be more
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equitable to creditors.
Feasibility of interest payments.
In its Tentative Ruling for 9/27/16, this Court addressed the issue of the feasibility of the debtors’ proposed interest payments to Bayview (Exhibit H, p.7:14-16) without some sort of cash infusion at the beginning of the plan. Exhibit H does not appear to have been explicitly amended to address the Court’s concerns. The tentative ruling is that the plan must be amended to provide for a cash infusion, and to make the failure to provide such infusion, or failure of the debtors immediately to provide evidence of that infusion, an event of default. In addition, the parties should be prepared to address whether Exhibit H should include an explanation of Butler Capital’s treatment under the plan, in light of Butler Capital’s objection to confirmation (dkt. 256), and the debtors’ reply (dkt. 257).
In addition, the debtors should be prepared to address the status of the proposed sale of the Foasberg Dry Cleaning business and whether, after payment of creditors to that business have been paid, the proceeds will constitute an adequate cash infusion to support the proposed interest payments.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan: The tentative ruling is to set a deadline of 12/13/16 for the debtor to lodge proposed orders approving the disclosure statement and confirming the plan and to file and serve on Bayview, the Receiver (for Hilma Foasberg), and the debtors' equity holders (i) notices of lodgment, (ii) an amended plan as set forth above (with any additional changes ordered at the hearing) and (iii) a redline showing the changes. If those documents appear accurately to reflect this court's rulings and otherwise to be acceptable, and if there are no objections to those changes by 12/20/16, then this court intends to issue orders approving the disclosure statement and confirming the plan. Otherwise, this court intends to hold a telephonic hearing.
Continued status conference: 1/10/16 at 2:00 p.m. No written status report is required. (This likely will be continued for 60 days or so if the plan is confirmed.)
*Warning: special procedures apply (see order setting initial status
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conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 9/27/16
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The tentative ruling is to approve the disclosure statement (dkt. 228) and confirm the debtors' proposed plan (dkt. 227) if and only if the debtors make the following modifications/interlineations and can provide a cash infusion or other sufficient evidence of feasibility as set forth below. The principal documents reviewed by this court are the plan, disclosure statement, supporting documents (dkt. 229-231), Bayview's objections (dkt. 240), the ballot summary (dkt. 242), the debtors' reply (dkt. 243), and Mr. Foasberg's supplemental declaration (dkt. 244).
Explicit incorporation of Exhibit H into the plan
The tentative ruling is that either Exhibit H itself, or the plan, or the order confirming the plan, or all three, must make it explicit that Exhibit H is incorported into the plan (although it is only attached to the disclosure statement). That appears to be the intent of the plan, if not its actual terms, because it references Ex.H and vice versa, but this should be more explicit.
"Hard" dates for the close of escrow
The debtors' current proposed plan adopts the previously ordered deadlines that for each property the debtors must be in escrow one year after confirmation (dkt. 228, Ex.H, p.4:24-25), and close escrow 18 months after escrow is entered (id., p.5:26-28), and also proposes (i) that they have 60 days from the failure of any escrow to re-open an escrow if they find a new buyer (id., p.5:2-4) and, apparently, (ii) that each new escrow opens a new 18 month period (id., p. 5:26-28). The tentative ruling is that the former condition meets the standards for cramdown (fair and equitable etc.) but the latter does not.
The tentative ruling is further that the debtors could cure this problem
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by expressly providing two things. First, the 18 month period would run from the first date when any escrow is opened as to a given property (or, for any escrow that is pending on the Effective Date, 18 months from the Effective Date). Second, to prevent possible evasion of the deadlines, sales would need to be all cash at closing (no deferred payments; no transfers of equity in lieu of cash; etc.).
Confusing additional preconditions to any default
The debtor apparently seeks to impose an additional precondition (dkt.
228, Ex.H, p.5:12-25, the "Additional Precondition") that before a party in interest may send a notice of default it must show that the payment of its claim is actually threatened after taking into account the likely proceeds from whatever properties actually are in escrow. First, as Bayview points out, this appears to place an undue burden on creditors.
Second, the Additional Precondition appears to be unnecessary because the debtors have an alternate remedy. If the debtor is actually able to pay creditors from the pending sales of other properties, and those sales are sufficiently likely to occur quickly, then the debtor can argue as much in its motion for relief from default (dkt. 228, Ex.H, pp. 5:28-6:6, the "Relief From Default Provisions").
Accordingly the tentative ruling is that the Additional Preconditions are not fair and equitable and must be struck from the plan.
Relief from default
The debtor has presented evidence regarding the difficulty of selling the properties, due in large part to environmental issues. Based on that evidence, it is difficult to tell in advance, for example, (i) what defaults could reflect a lack of diligence by the debtor, as opposed to genuine obstacles to closing due to environmental issues, or (ii) whether the debtor is unreasonably seeking to eliminate all possible environmental issues instead of selling at a moderate discount to a buyer who is willing to address some such issues. In other words, there may be good reasons for the debtor to be able to seek relief from default, but it is difficult if not impossible to know in advance, so the debtor appears to have proposed a reasonable mechanism to place this issue before this court, subject to the familiar standards for relief from the automatic stay.
Bayview has not presented contrary evidence or a suitable alternative mechanism for dealing with these issues. Accordingly, the tentative ruling is that the Relief From Default Provisions are fair and equitable and otherwise
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satisfy the requirements for confirmation under the circumstances.
Reinstatement
The debtors do not disagree with Bayview's proposed language: that "any [currently pending] foreclosure [proceedings with respect to] the subject properties will be rescinded" as opposed to stating that the loans will no longer be in default. The tentative ruling is that the plan must be amended to make this change (see dkt. 228, Exhibit H, p. 6, dkt. 240, p.12:5-8, dkt. 243, p. 8:10-12).
Interest payments
The debtors' plan proposes to make monthly interest-only payments of
$5,963.41 and $3,794.45 to Bayview until it is paid in full from the sale of the real properties (dkt. 228, Ex. H, p.7:2-4). This raises two issues: (i) whether the proposed rate of interest is appropriate and (ii) whether the proposed payments are feasible (11 U.S.C. 1129(a)(11)).
Appropriate interest rate
The debtors have proposed interest rates of 7.5% (dkt. 228, Ex.H, p.7:2-4). This is somewhat higher than the rates in the existing promissory notes (dkt. 243, pp.8:28-9:4).
As stated in Judge Bason's posted procedures,
Judge Bason has expressed the view in various cases that when dealing with relatively small dollar amounts (for which the cost of presenting expert testimony as to interest rates would be prohibitive) the analysis in Till v. SCS Credit Corp., 541 U.S. 465 (2004), is appropriate, and conversely when dealing with larger dollar amounts the Till analysis probably is not appropriate, and one acceptable method for experts to opine as to the appropriate interest rate is the method described in In re Boulders on the River, Inc., 164 B.R. 99 (9th Cir. BAP 1994); see In re N. Valley Mall, LLC, 432 B.R. 825 (Bankr. C.D. Cal. 2010) (discussing continued viability of Boulders on the River).
In this case it does not appear to be cost-effective for either party to incur the expense of expert testimony as to interest rates (i.e., the type of expert testimony addressed in Boulders on the River and N. Valley Mall). In any event neither party has chosen to do so. So the tentative ruling is to apply the Till analysis or something comparable.
Under that analysis, courts typically apply an interest rate of 1% to 3%
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over prime, although the starting point might be different (higher) in situations such as this when the properties have environmental issues, so this court also looks to the contract rate used by the parties. This court also takes into consideration that payment to Bayview has been much delayed, and the debtors are proposing interest-only payments (as opposed to amortizing payments), but on the other hand Bayview's claims are protected by a large equity cushion, and national interest rates are near historic lows.
Under the foregoing analysis the debtors have made a sufficient prima facie showing that their proposed interest rates are within the range of what is permissible. Bayview has not rebutted that showing. Therefore the tentative ruling is to approve the proposed interest rates.
Feasibility
The supplemental declaration of Mr. Foasberg indicates that he intends to sell the dry cleaning businesses that have been failing to pay rent to the debtors for several months (dkt. 244, p. 2). The problem is that it is not at all clear how the debtors intend to make plan payments prior to the sale of the business given their recent performance, i.e., lack of feasibility (11 U.S.C. 1129(a)(11)). Their MOR for August (dkt. 241, p. 21), states that they only hold unrestricted cash of $2,044.28.
It appears that the debtors will need a cash infusion if this court is to make a finding of feasibility. In addition, testimony will be needed (or at least an offer of proof subject to cross-examination) to support the debtors' assertion that any given dollar amount is adequate to show feasibility.
To the extent that this or any other issue requires testimony, this court may accept an offer of proof or brief testimony at today's hearing, or may set a continued hearing for the presentation of evidence and cross-examination. The parties should be prepared to address timing and procedures.
The tentative ruling is that the plan must be amended to provide for such a cash infusion, and to make the failure to provide such infusion, or failure of the debtors immediately to provide evidence of that infusion, an event of default.
Preservation of net revenues/"set aside" for possible environmenal remediation
The plan apparently contemplates that if the debtors have their projected cash flow then most net revenues would be used to fund a "set aside" each month for possible environmental remediation of their properties estimated at $5,000 per month per debtor. The tentative ruling is that for the
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plan to be fair and equitable (and otherwise meet the standards for confirmation) any such funds must be subject to the following conditions.
First, they must be actually paid: if the debtors make any expenditures out of the ordinary course of business, except to fund such a set aside or pay for environmental remediation, then it seems that must be a default under the plan for the plan to be fair and equitable. Second, if the debtors fail to provide monthly accounting of such funds, including a bank account statement, then that would have to be a default under the plan for it to be fair and equitable.
Form of confirmation order
The tentative ruling is that, pursuant to LBR 3020-1(b) the confirmation order shall include the following:
Within 120 days of the entry of this order, the debtors shall file a status report explaining what progress has been made toward consummation of the confirmed plan of reorganization. The initial report shall be served on the United States trustee, the 20 largest unsecured creditors, and those parties who have requested special notice. Further reports shall be filed every 120 days thereafter and served on the same entities, unless otherwise ordered by the court. A postconfirmation status conference will be held on January 17, 2017 at 2:00 p.m.
If this case is converted to one under chapter 7, the property of the reorganized debtor shall be revested in the chapter 7 estate.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan: The tentative ruling is to set a deadline of 10/4/16 for the debtor to lodge proposed orders approving the disclosure statement and confirming the plan and to file and serve on Bayview, the Receiver (for Hilma Foasberg), and the debtors' equity holders (i) notices of lodgment, (ii) an amended plan as set forth above (with any additional changes ordered at the hearing) and (iii) a redline showing the changes. If those documents appear accurately to reflect this court's rulings and otherwise to be acceptable, and if there are no objections to those changes by 10/11/16, then this court intends to issue orders approving the disclosure statement and confirming the plan. Otherwise, this court intends to hold a telephonic hearing.
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Continued status conference: 10/18/16 at 2:00 p.m. No written status report is required. (This likely will be continued for 60 days or so if the plan is confirmed.)
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/27/16
This court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 7/19/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Background
These cases were filed in January of 2015. The debtors have filed several proposed plans and disclosure statements, the latest of which are dated 6/21/16 (dkt. 217, 218).
They blame the lack of a confirmed plan of reorganization on the fact that they own several parcels of real estate that may require extensive environmental remediation, and therefore are difficult to sell. The primary outstanding issue in this case is whether their proposed joint plan must provide for a more expedited sales process than the one they have proposed.
That is primarily a confirmation issue (under, e.g., 11 U.S.C. 1129(a)(3) (good faith), (a)(11) (feasibility), and, to the extent "cramdown" is required, (b)
(no unfair discrimination, and being fair and equitable, with respect to each impaired, non-consenting class)). Typically, however, the bankruptcy courts consider prior to any confirmation hearing whether a plan is so deficient on its face that sending it out for voting is not worth the resulting expense, delay, and potential confusion.
In addition, the disclosure statement must contain "adequate information" under 11 U.S.C. 1125(a). Again, that is generally an issue for a
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later stage - the disclosure statement hearing - but bankruptcy courts often address as a preliminary matter whether the disclosure statement is so deficient that no such hearing should be set. That is particularly important given Judge Bason's practice of setting combined hearings on the disclosure statement and plan confirmation. Therefore it is appropriate to address at this stage, initially, whether the debtor has adequately disclosed the potential environmental issues and analyzed the nature of possible remediation, possible approaches that could maximize the sale proceeds balanced against expediting the time for sale, etc.
At the status conference on 5/31/16 this Bankruptcy Court established procedures for the parties to address these issues on a preliminary basis - to determine whether to authorize the debtor to mail a voting package to creditors. The debtors have filed the declaration of their real estate broker Mr. O'Healy (dkt. 220). No other parties in interest have filed any contrary evidence, although creditor Bayview Loan Servicing, LLC ("Bayview") has filed an "opposition" to the proposed joint plan (dkt. 222), which includes an objection to Mr. O'Healy's declaration. The debtors have filed a reply (dkt.
223).
Tentative Rulings
The tentative rulings are as follows, taking into account the amendments that the debtors propose in their reply (dkt. 223) (and solely for the limited purpose described above - i.e., for authorizing the debtor to mail its voting package - and without prejudice to objections at the combinded hearing on adequacy of the disclosure statement and whether to confirm the proposed joint plan):
Evidence: Overrule the objections to Mr. O'Healy's
declaration.
Timing: Overrule Bayview's objection as to the timing of the
sales, except that the timing must be clarified regarding how long escrow can be open before it can be said to have "fail[ed] to close" (dkt. 218-7, Disclosure Statement p.39:3, which is Ex.H at 5:3); and how long the debtors would after any new escrow were to open before it too would have failed to close. On the present record, this Bankruptcy Court is not persuaded that the "drop dead" dates proposed by Bayview are essential, and that the voting package should not be sent. The debtors argue, with supporting evidence, that "[i]f Bayview were to foreclose, it would face the same problems facing Debtors because
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the hurdles to selling these properties would not be eliminated if someone else were to sell them." (Dkt. 223, p.6:10-12.)
The foregoing should not be interpreted as a ruling for confirmation purposes. It may be necessary or appropriate, in order to confirm any plan, to establish either "drop dead" dates or some mechanism to assess whether the debtors have been dragging their feet and whether it is fair and equitable to grant additional time to engage in the sale process.
Default terms: Sustain Bayview's objections regarding the proposed default terms, because of the difficulty (if not impossibility) that Bayview would have in filing a declaration under penalty of perjury as to the debtors' funds and the status of the debtors' sales. The parties should be prepared to address alternative default terms.
Reinstatement of loans: Overrule Bayview's objections regarding the reinstatement of its loans.
Other issues: The debtors' Exhibit H is needlessly repetitive (this Court will review the details orally at the hearing). In addition, the parties appear to assume that the automatic stay will continue to apply (see, e.g., dkt. 218-7, Disclosure Statement p.89:9, which is Ex.H at 5:9) but the "boilerplate" language in the plan provides for property to revest in the reorganized debtors on the Effective Date (dkt. 217, p.5, part IV.B.) which generally terminates the automatic stay (11 U.S.C. 362(c)(1)). If the debtors intend to provide for the automatic stay to continue (either by eliminating revesting, or by some other means) then they must disclose that clearly, and establish that they legally can do so.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan (dkt.217)/Disclosure Statement (dkt. 218): This court anticipates setting the following deadlines: 7/26/16 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference; 7/29/16 for the plan proponent to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; 9/27/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 9/27/16 at 1:00 p.m. No written
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status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/19/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/31/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
These cases have been pending since 1/23/15 - a very long time. This Court has reviewed the debtor's (belated) status report (dkt. 213). The parties should be prepared to address the outline of a plan proposed by the debtor and any associated deadlines.
Deadlines/dates. This case was filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: See above
Continued status conference: 9/6/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/22/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges,"
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"Bason, N.", "Instructions/Procedures").
Current issues. On 3/22/16, this court continued this matter to allow the debtors and Bayview (the primary secured creditor) to negotiate agreeable terms. The parties should be prepared to address whether they have resolved their dispute or, if not, how they intend to proceed.
Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: Subject to the foregoing issues: 4/6/16 deadline for the plan proponent to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; and 5/31/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 5/31/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/23/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 193) and disclosure statement (dkt. 194) (and redline, dkt. 195). The debtors now propose a one year deadline after the effective date to have the subject properties "under contract and in escrow" (see, e.g., dkt. 194-7, p. 6:1-6). Is this agreeable to Bayview Loan Servicing, LLC? Are all major constituencies in agreement regarding the amended plan? Are there any other issues that need to be resolved prior to setting a date for a hearing on approval of the disclosure statement and confirmation of the plan?
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Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: Subject to the foregoing issues: 3/2/16 deadline for the plan proponent to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; and 4/26/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 4/26/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 1/19/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Progress toward confirmation. At the 11/17/15 status conference, the debtors stated that they would file an amended, red-lined version of their plan and disclosure statement correcting certain issues. When do the debtors anticipate filing these?
Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement (dkt. 174, 175): The parties should be prepared to discuss the debtors' exit strategy and deadlines for any further sale motions and/or an amended plan and amended disclosure statement.
Continued status conference: 2/23/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status
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conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/19/16:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
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Docket 0
Tentative Ruling for 4/10/18:
Continue to 4/17/18 at 1:00 p.m. to be concurrent with the debtor's motion for an order clarifying the terms of a stipulation regarding the purchase of class 8 claims (dkt. 1489) and in view of the debtor's status report (dkt. 1488).
Appearances are not required on 4/10/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
This court has reviewed the debtor's last status report (dkt. 1465, filed 11/28/17). The parties should be prepared to provide an oral status report regarding any additional developments that are appropriate for this post- confirmation status conference. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 12/12/17:
Continue to 1/9/18 at 1:00 p.m. in view of the debtor's status report (dkt. 1465) and to be heard concurrently with Motion to Approve Compromise Under Rule 9019 (dkt. 1468). Appearances are not required on 12/12/17.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/12/17:
Continue to 12/12/17 at 2:00 p.m. in view of the debtor's status report (dkt. 1456). See also dkt. 1454 (order continuing 8/8/17 Status Conference to 9/12/17). Appearances are not required on 9/12/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 8/8/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Has the debtor been making all payments under the plan that went effective on April 5, 2017 (dkt. 1408)? Is this case ready for a final decree and closing?
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/23/17:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Ms. Cohen's motion for reconsideration (dkt. 1421) and related papers (dkt. 1423, 1431, 1434, 1436). The tentative ruling is to deny the motion as to the approximately $67,128 paid into this court's registry and as to all but $20,000 of the approximately $32,872 held by Ms. Cohen's current counsel. In addition, the tentative ruling is to require Ms. Cohen's current counsel to continue to hold that $20,000 pending a further order regarding the proper person(s) to whom those funds should be distributed.
Reasons: The point of coervice sanctions is to coerce compliance, and up until that compliance happened the sanctions had not had their intended coercive effect. In addition, there is a "moral hazard" problem (both for Ms.
Cohen's future behavior and for any other parties involved in bankruptcy cases) if this court were to reduce coercive sanctions after (very belated) compliance. The motion asserts that Ms. Cohen has suffered and will suffer various hardships due to lack of funds; but she always had the ability to mitigate those hardships by complying with this court's orders (and her own prior agreements), thereby stopping the accumulation of coercive sanctions.
Nevertheless, as the motion points out, Ms. Cohen's counsel had to "negotiate, review and draft the documents needed to comply with the Confirmation Order" (dkt. 1421, p.4:12-14), which means that even after she was prepared to comply with this court's orders there was a period of time when the coercive sanctions were continuing to accrue at a rate of $500 per day. Although Ms. Cohen has not presented any evidence regarding how many days this took (or whether her efforts at compliance were always genuine or diligent), this court is familiar with the progress of documentation based on the hearings that were held before this court. Giving Ms. Cohen the benefit of the doubt that the documentation took 40 days after she was diligently committed to compliance, the tentative ruling is that as a matter of discretion the coercive sanctions will be reduced by $20,000.
Proposed order: Ms. Cohen is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. In addition, Ms. Cohen is directed to lodge a proposed order on Local Form F
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7067-1.1.ORDER.REGISTRY.FUND.
Effect of attorney liens (dkt. 1423, 1431)
To the extent that Ms. Cohen's former counsel (Mr. Shensen, Mr. Aron, and their firms) request to be paid immediately - either out of the $20,000 referenced in section "(1)(a)" of this tentative ruling or out of any other distributions that might be made to Ms. Cohen - the tentative ruling is that those matters are not properly before this court. First, those request should be the subject of their own proceedings, rather than simply being included in oppositions to Ms. Cohen's motion for reconsideration.
Second, to the extent, if any, that those attorneys are seeking declaratory or injunctive relief, those matters presumably would require an adversary proceeding. See Rule 7001 (Fed. R. Bankr. P.).
Third, presumably any such proceeding would need to join all other known potential claimants, including not just each other but also the IRS/FTB, the bankruptcy estate (dkt. 1434), and perhaps Ms. Cohen's other former or present counsel and anyone who has asserted liens that may apply against her distributions, such as persons who have filed judgment liens or conducted a judgment debtor exam.
The foregoing is based solely on the filed papers to date. This court has not researched the mechanisms for enforcing attorney liens, and does not intend for this tentative ruling to supplant or prejudge any such mechanisms.
Adversary proceedings. The parties should be prepared to address whether Ms. Cohen is moving forward with prosecuting the various adversary proceedings that have been assigned to her under the (now effective) chapter 11 plan. If not, what remedies are appropriate?
Motion to employ professionals (1429). The tentative ruling is to grant the debtor's motion to employ professionals for the benefit of the estate.
Proposed order: The debtor is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Compensatory civil sanctions (adv.p. 2:16-ap-01046-NB, dkt. 90, 97, 118, 126, 147), and attorney liens (dkt. 1423, 1431, 1433). The parties should be prepared to address the issue of which party should receive the monthly rent and the security deposit that Ms. Cohen would otherwise receive pursuant to the plan. As stated above in section "(1)(b)" of this tentative ruling, this court has concerns about whether this issue has been properly presented for determination at this time.
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Deadlines/dates. This case was filed on 6/25/13. The tentative ruling is to set a continued post-confirmation status conference for 7/11/17 at 2:00 p.m., but the parties should be prepared to address at the hearing the necessity of scheduling a continued hearing sooner or later than that date, and any other deadlines in this case.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
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Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
fr. 8/8/17, 9/12/17, 1/23/18, 2/27/18
Docket 47
Tentative Ruling for 4/10/18:
Please see the tentative ruling for the adversary proceeding status conference (calendar no. 2, 4/10/18 at 2:00 p.m.).
Tentative Ruling for 2/27/18:
Please see the tentative ruling for the adversary proceeding status conference (calendar no. 2, 2/27/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the adversary proceeding status conference (calendar no. 5, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 9/12/17:
Please see the tentative ruling for the adversary proceeding status conference (calendar no. 5, 9/12/17 at 2:00 p.m.).
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By
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Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
Plaintiff(s):
Fariba Cohen Represented By
Michael H Weiss
Official Committee of Creditors Represented By Christopher Celentino Peter W Bowie
2:00 PM
Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
and for setoff pursuant to 11 U.S.C. section 553 fr. 01/05/16, 02/23/16, 03/22/16, 4/5/16, 4/12/16,
5/16/16, 7/19/16, 8/9/16, 9/6/16, 10/11/16, 11/1/16,
2/21/17, 4/11/17, 5/23/17, 8/8/17, 9/12/17, 1/23/18,
2/27/18
Docket 1
Tentative Ruling for 4/10/18:
Appearances required.
Current issues. This court has reviewed the parties' filed status Status Report (adv. dkt. 68) and other filed documents in this adversary proceeding. The parties should be prepared to address the scope of issues and evidence to be presented at trial.
Deadlines: This adversary proceeding has been pending since 6/23/15. The deadlines are set forth in this Court's scheduling order (adv. dkt. 63). The status report states that the plaintiff "is seeking a continuance of the trial and other deadlines." The parties should be prepared to address that issue.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 4/10/18 at 2:00 p.m. Appearances not required on 2/27/18.
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(1) Current issues. This court has reviewed the parties' filed scheduling order (dkt. 61), Status Report (dkt. 62), and other filed documents in this adversary proceeding. There are no issues for this court to raise sua sponte.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to address the status of this adversary proceeding and why no status report has been filed, as required by this court's order (dkt. 58) and by the Local Bankruptcy Rules.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 9/12/17:
Continue to 1/23/18 at 2:00 p.m. based on the representations in the plaintiff's status report (adv. dkt. 55). Appearances are not required on 9/12/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
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Tentative Ruling for 9/12/17:
Appearances required. This court continued this matter from 8/8/17 to 9/12/17 sua sponte (dkt. 53). The parties should be prepared to address the issues noted in the tentative ruling for 8/8/17 (reproduced below).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/8/17:
Appearances required. The court has reviewed the crossclaim (dkt. 47) and answer to crossclaim (dkt. 52), and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
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Deadlines: This adversary proceeding has been pending since 6/23/15. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 10/9/17 Expert(s) - deadline for reports: 10/23/17
Expert(s) - discovery cutoff (if different from above): 11/6/17 Dispositive motions to be heard no later than: 12/21/17 Joint Status Report: 10/31/17.
Continued status conference: 11/14/17 at 11:00 a.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/23/17:
Please see the tentative ruling for calendar no. 9 (5/23/17 at 2:00 p.m.).
Tentative Ruling for 4/11/17:
Please see the tentative ruling for calendar no. 4 (4/11/17 at 2:00 p.m.).
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
2:00 PM
Plaintiff(s):
Fariba Cohen Represented By
Michael H Weiss
Official Committee of Creditors Represented By Christopher Celentino Peter W Bowie
2:00 PM
TRANSAMERICA LIFE INSURANCE CO
vs DEBTOR
Docket 61
Please see the tentative ruling for the Status Conference (calendar no. 6, 4/10/18 at 2:00 p.m.).
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
Movant(s):
Transamerica Life Insurance Represented By James B Clark
2:00 PM
vs DEBTOR
Docket 53
Please see the tentative ruling for the Status Conference (calendar no. 6, 4/10/18 at 2:00 p.m.).
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
Movant(s):
Strategic Emerging Economics, Inc. Represented By
David I Brownstein
2:00 PM
CITIZENS BUSINESS BANK
vs DEBTOR
Docket 16
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
Movant(s):
Citizens Business Bank Represented By Reed S Waddell
Gerrick Warrington Michael G Fletcher
2:00 PM
Docket 5
Tentative Ruling for 4/10/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 76) and the pending motions for relief from the automatic stay and related matters. There is no tentative ruling at the present time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/22/18 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves. This court has reviewed the debtor's chapter 11 status report (dkt. 31) and all other filings in this case.
Current issues
Proposed bankruptcy counsel (dkt. 9, 30, 34, 45, 46). The debtor has now disclosed that the source of the prepetition retainer is Olympic Holdings, LLC ("Olympic"), the managing member of which is also the debtor's managing member, namely Mr. Mark Slotkin. The debtor has also clarified that although Olympic proposes to pay counsel's monthly bills as they come due (to be held in proposed counsel's client trust account until allowed), Olympic reserves the right to request reimbursement of prepetition payments as a general unsecured claim and postpetition payments as an administrative claim - would such postpetition request be on "substantial contribution" grounds? or on other grounds, such as an administrative priority loan (under 11 U.S.C. 364? without interest? with interest?)?
The foregoing facts and questions raise a host of ethical concerns. Any counsel who is paid by a third party (the "Funder") may be subject to conflicts of interest, especially if there are potential avoidance actions, reimbursement or contribution or indemnity claims, or other claims that could be investigated or brought against the Funder. At the hearing, proposed counsel must address the following.
Connections. What are all of the connections (as that term is used in FRBP 2014) among the Funder, the debtor, Mr. Slotkin, and proposed counsel? Are there any conflicts of interest, or potential conflicts? In the past, Judge Bason has followed authority holding that conflicts cannot be waived by a debtor in possession because it is representing the interests of creditors and has no authority to waive conflicts on creditors' behalf. In addition, to help in identifying all connections, Judge Bason's posted procedures require the use of Local Form 2014-1 (see those procedures at www.cacb.uscourts.gov for instructions how to fill out that form).
Terms. What are the precise understandings regarding the
funds?
Informed consent of Funder. Mr. Slotkin declares (dkt. 45,
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para.5) that both he and Olympic understand that proposed counsel "does not represent us, and only represents the Debtor"? Have the members of Olympic (whoever they might be) been advised of this as well? Have all such persons been advised not only of representation issues but also attorney- client privilege issues, including what can happen if a trustee were to be appointed? Have all such persons been advised of duties of loyalty, whom counsel will continue to represent (if anyone) if a conflict develops, and other ethical and practical concerns? Who provided such advice: independent counsel, or the debtor's proposed counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing?
Other considerations. Has proposed counsel demonstrated or represented to this Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: concurrent with any other hearings in this case, and also on 5/1/18 at 2:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
2:00 PM
Docket 1
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 57). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17- bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
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Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
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Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms
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required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
2:00 PM
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 57
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the Checkmate
case (calendar no. 7, 4/10/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the Checkmate
case (calendar no. 15, 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference (calendar no. 7, 1/30/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 20, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 12/5/17:
Appearances required. The tentative ruling is that although there are substantial grounds under the Curtis factors to grant relief from the automatic stay, nevertheless it would be in the best interest of creditors to delay granting such relief, on a temporary basis, to afford the debtor a breathing spell from litigating the state court action, and to obtain a better sense of the debtor's assets and prospects for generating income, all of which this court will
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discuss further with the parties at the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
2:00 PM
Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
fr. 4/9/18
Docket 10
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 2:00 p.m. for the reasons stated on the record on 4/9/18. Appearances are not required on 4/10/18.
Tentative Ruling for 4/9/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether this court should grant Checkmate's request for an expedited hearing and issue an order granting a temporary restraining order and order the immediate turnover of the Collateral pursuant to Checkmate's claim and delivery action.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Pro Se
2:00 PM
George Tyler Fower Pro Se Siemens Medical Solutions USA Inc Pro Se
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 1
Tentative Ruling for 4/10/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 12, 4/10/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 12, 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 5, 1/30/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
2:00 PM
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 8
Tentative Ruling for 4/10/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 12, 4/10/18 at 2:00 p.m.)
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 12, 2/13/18 at 2:00 p.m.)
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 5, 1/30/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 20, 1/23/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By
2:00 PM
Carol Chow
Defense Labor Aero, Corporation Pro Se
Movant(s):
Fresco International Corporation Represented By
Carol Chow
Tsuneo Hisenaga Represented By Carol Chow
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
2:00 PM
FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 48
Tentative Ruling for 4/10/18:
Please see the tentative ruling for the status conference in the Sakurai case (calendar no. 12, on 4/10/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the Sakurai case (calendar no. 12, on 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference (calendar no. 5, 1/30/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 17, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 12/5/17:
Appearances required. The tentative ruling is that although there are substantial grounds under the Curtis factors to grant relief from the automatic stay, nevertheless it would be in the best interest of creditors to delay granting such relief, on a temporary basis, to afford the debtor a breathing spell from litigating the state court action, and to obtain a better sense of the debtor's
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assets and prospects for generating income, all of which this court will discuss further with the parties at the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
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Docket 1
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 48). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Fresco Adversary Proceeding (adv. case no. 2:17-ap-01558-NB), including motion to remand (adv. dkt. 8). The tentative ruling is that this matter will be mooted, assuming that this Court approves the parties' proposed settlement, and therefore this matter should go off calendar. The parties are reminded to file appropriate papers to have this matter dismissed once the settlement is fully implemented.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
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Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
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Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
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Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 32
Debtor(s):
Daebie V. Tatco Represented By William G Cort
Movant(s):
Wells Fargo Bank, N.A. Represented By Brandye N Foreman John Chandler Angela M Fowler
William P McCooe Jr Deborah L Rothschild Joseph Vance
Tavon Taylor Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
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THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 49
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378- NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
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possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Hernandez Represented By Peter L Lago
Joint Debtor(s):
Ayrin Hernandez Represented By Peter L Lago
Movant(s):
The Bank of New York Mellon Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 47
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Dorothy L. Cole Represented By Matthew D Resnik
Movant(s):
Wells Fargo Bank, National Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 48
- NONE LISTED -
Debtor(s):
Jeffrey Hawkins Represented By Heather J Canning
Movant(s):
Wilmington Savings Fund Society, Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA.
vs DEBTOR
Docket 26
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Maria De Jesus Martinez Represented By Rebecca Tomilowitz
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kristen Shoemaker Emily M Marchino Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 44
- NONE LISTED -
Debtor(s):
Jason Lee Terry Represented By Allan S Williams
Joint Debtor(s):
Adriana Jennifer Terry Represented By Allan S Williams
Movant(s):
Wells Fargo Bank, N.A. Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] WELLS FARGO BANK, N.A.
vs
DEBTOR
Docket 15
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
Deny Movant's request for an order pursuant to 11 U.S.C. 362(c)(4)(A)
(ii) (Movant's alternative ground for arguing that the stay does not apply). Movant has not established an exception to the automatic stay under 11
U.S.C. 362(c)(4)(A)(ii) because Movant has failed to show that this debtor (as opposed to another debtor) was a debtor in two or more cases within the year prior to the petition date in this case.
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the
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automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jesse Pacheco, Jr Pro Se
Movant(s):
WELLS FARGO BANK, N.A. Represented By
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Trustee(s):
Kelsey X Luu
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] THE BANK OF NEW YORK MELLON
vs
DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case
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no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378- NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alfred Robert Santana Pro Se
Movant(s):
The Bank of New York Mellon, fka Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CBS EMPLOYEES FEDERAL CREDIT UNION
vs DEBTOR
Docket 41
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Albert Sanford III Represented By Kahlil J McAlpin
Joint Debtor(s):
Kimberly Rochell Dupree-Sanford Represented By
Kahlil J McAlpin
Movant(s):
CBS Employees Federal Credit Represented By
A. Lysa Simon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
11 U.S.C. 362(j) or That No Stay is in Effect under 11 U.S.C. 362(c)(4)(A)(ii)
Docket 33
Continue to 5/1/18 at 10:00 a.m. to address the following issues. Appearances are not required on 4/17/18.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Reasons:
(1) Service. The Motion was not served on the debtor pursuant to LBR 4001-1(c)(1)(C)(i) and 4001-1(e)(2) - service on the debtor's attorney is not sufficient by itself. Movant is directed to file an amended proof of service reflecting service on the debtor by 4/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Manuel Palilio Domingo Represented By
10:00 AM
Movant(s):
Brad Weil
Courtesy NEF Represented By Cheryl S Chang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
795 FAIRFILED CIRCLE, LLC
vs DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to the legal analysis in In re Vazquez
(case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14- bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for
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relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Claudia Ann Fisher Pro Se
Movant(s):
795 Fairfield Circle, LLC Represented By Carol G Unruh
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 190
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This court continued the matter from 3/20/18 at the request of the parties for more time to reach an adequate protection agreement (see dkt. 201, 203, 205). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This matter has been continued twice from the hearing on 2/13/18. See Stipulation to Continue (dkt. 193, 197) and orders thereon (dkt. 195, 199). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have
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been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's late-filed response, dkt. 192).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required. This court continued the hearing on this matter pursuant to the parties' stipulation (dkt. 193) and order thereon (dkt. 195). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's late-filed response, dkt. 192).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodney Edward Donkin Jr Represented By Louis J Esbin
Movant(s):
Wells Fargo Bank, N.A. as Trustee Represented By
Robert P Zahradka Tina R Lyons
Gagan G Vaideeswaran
10:00 AM
Trustee(s):
Joseph C Delmotte
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA
vs DEBTOR
Docket 55
Tentative Ruling for 4/17/18 (same as 3/6/18, 1/30/18 and 1/9/18): Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling. This matter was continued to allow time for the parties to negotiate the terms of an adequate protection order or for the debtor to enter into a trial loan modification. At the hearing, the parties should be prepared to address the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it
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has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rachel Ramos Herron Represented By
Andrew Edward Smyth
Movant(s):
HSBC Bank USA, National Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 33
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling. This matter was continued to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under
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11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jasper Andrew Perrin Represented By Thomas B Ure
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 268
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brian Lee Represented By
Christian T Kim
Movant(s):
Brad D Krasnoff (TR) Represented By John N Tedford
Trustee(s):
David A Gill (TR) Represented By John N Tedford Aaron E de Leest
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Adv#: 2:18-01030 Construction Laborers Trust Funds for So Calif v. GRAYSON
Docket 7
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference, calendar no. 2.10, 4/17/18 at 11:00 AM.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
Defendant(s):
RICKY TYRONE GRAYSON Represented By Ryan A Stubbe
Movant(s):
RICKY TYRONE GRAYSON Represented By Ryan A Stubbe
Plaintiff(s):
Construction Laborers Trust Funds Represented By
Marsha M Hamasaki Jeffry D Sackman
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
11:00 AM
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Adv#: 2:18-01030 Construction Laborers Trust Funds for So Calif v. GRAYSON
fr. 4/10/18
Docket 1
Tentative Ruling for 4/17/18:
Appearances required. The court has reviewed the debtor’s motion to dismiss (dkt. 7), Plaintiff’s opposition (dkt. 14), the parties' joint status report (dkt. 9), Notice of Related District Court Case (dkt. 12) and the other filed documents and records in this adversary proceeding.
Paragraph "(2)" below is the tentative ruling on the motion to dismiss.
Paragraphs "(1)," "(3)," and "(4)" below are Judge Bason's standard requirements for status conferences, with additional provisions specific to this matter. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate
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nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
With respect to this specific matter, although nondischargeability complaints are prototypically "core" bankruptcy matters, this Bankruptcy Court is concerned about possible duplication of litigation and infringement on the District Court's management of the related nonbankruptcy action pending in that Court since 6/16/17. Should this Bankruptcy Court grant relief from the automatic stay (on this Court's own motion or the motion of either party) so that such litigation can proceed, and meanwhile hold this nondischargeability action in abeyance? Alternatively, are other approaches preferable, such as removal, or withdrawal of the reference, or bifurcation of issues? The parties are directed to address what is the most appropriate and efficient way to proceed.
Motion to Dismiss (dkt. 7)
The legal standards applicable to a motion to dismiss will not be repeated here because they are well known and have been summarized in the parties' filed papers. The tentative ruling is to grant the motion to dismiss the first and second claims for relief, with leave to amend, for the following reasons.
11 U.S.C. 523(a)(2)(A): false representation etc.
The debtor/defendant seeks dismissal of the first claim for relief, under section 523(a)(2)(A), on the ground that the plaintiff has not alleged that he obtained money, property, services, or credit from plaintiff as a result of the alleged fraud. The debtor/defendant argues (adv. dkt. 7, pp.6:23-7:3) that any alleged misrepresentations occurred in reports filed after the employees had performed services for the prior month and therefore after the debt was incurred, so the money or property at issue was not "obtained by" the alleged fraud.
On the one hand, the motion to dismiss is not entirely persuasive on this point. Reading the complaint in the light most favorable to the plaintiff as this Court must do when addressing a motion to dismiss, the complaint (adv. dkt. 1, p.1, para. 25) alleges that as a result of an ongoing pattern of false reports the Trust Funds (whom the plaintiff represents) missed opportunities to assert claims against the debtor/defendant's general contractors, which allegedly would have resulted in recovery of funds to cover the dollar amounts
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owed to the Trust Funds. In other words, if the Trust Funds had known of the (allegedly) false representations in those reports (or the allegedly fraudulent nature or false pretenses in those reports) then, allegedly, the Trust Funds could have pursued remedies that apparently are no longer available to them, so the fact that the reports were filed after the services were rendered each month is not dispositive.
But the complaint does not explain how the Trust Funds' missed opportunity amounts to obtaining money, property, services, or credit from plaintiff as a result of the alleged fraud. Rather, it appears that the (allegedly) false reports enabled the debtor/defendant to continue obtaining services from the employees (without providing those employees all of the compensation to which they were owed, in the form of funds that should have been transferred to the Trust Funds for the benefit of the employees).
Compare In re Kay, 60 B.R. 174, 176 (Bankr. C.D. Cal. 1986) (liability based on fact that "the employee beneficiaries" sustained damages as "the proximate result of the defendants' representations") (emphasis added).
In sum, there are not enough allegations in the complaint to show a causal connection between the alleged falsehoods of the debtor/defendant and some sort of damage to the plaintiff. It is possible, of course, that the plaintiff stands in the shoes of the employees for these purposes, but the complaint does not include sufficient allegations (or copies of documents) for this Court to read the complaint that way. It is also possible that the plaintiff itself has been damaged - e.g., perhaps the plaintiff is liable to the employees if it did not detect and cure the alleged falsehoods in the debtor/defendant's reports, and thus the plaintiff itself has been damaged - but again the complaint does not include sufficient allegations (or copies of documents) for this Court to read the complaint that way.
For all of these reasons, the tentative ruling is to grant the motion to dismiss the first claim for relief, with leave to amend. The tentative deadline for filing an amended complaint is 5/1/18.
The debtor/defendant has raised a separate argument with respect to the first claim for relief. The tentative ruling, however, is to reject the debtor/defendant's alternative argument (adv. dkt. 7, pp.7:23-8:5) that, under Rule 9(b), Fed. R. Civ. P. (incorporated by Rule 7009, Fed. R. Bankr.P.), the complaint is not sufficiently precise about the amount of hours that were falsely under-reported in each report. The complaint sufficiently apprises the
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debtor/defendant of the grounds of the alleged fraud, and any greater specificity is a matter for discovery and proof at trial, not a defect in pleading.
11 U.S.C. 523(a)(4): fraud or defalcation while acting in a fiduciary capacity, etc.
The debtor/defendant seeks dismissal of the second claim for relief, under section 523(4), on the ground that the complaint lacks sufficient allegations that he is a fiduciary with respect to the funds at issue. The tentative ruling is that this is correct.
The complaint alleges that "amounts withheld from employee wages meant to be transmitted to the Vacation Trust" became assets of that trust "'as of the earliest date on which such contributions ... can reasonably be segregated from the employer's general assets.'" Complaint (adv. dkt. 1), p. 8, para.30 (emphasis added, quoting 29 C.F.R. 2510.3-102). In response the debtor/defendant argues (adv. dkt. 7, pp.9:12-15): "Plaintiff has failed to allege that such withholdings actually occurred and when such employee wage withholdings could be 'reasonably segregated from the employer’s general assets.' Without such allegations, Plaintiff has failed to adequately allege that plan assets are at issue." (Emphasis added.)
To illustrate, consider the following hypothetical situation. Suppose that the debtor/defendant was paid $10X by a customer, but had obligations at that time of $15X consisting of $5X owed to employees for their base pay,
$1X that should have been transmitted to the Vacation Trust but was not, and
$9X for various other business expenses such as rent and income taxes. Did the $1X ever become segregated (withheld from wages) to the extent that it became a separate fund as to which the debtor/defendant had fiduciary obligations, or was the $1X only one contractual debt among many, with no segregated fund and therefore no associated fiduciary obligations?
In a similar vein the debtor/defendant also argues (adv. dkt. 7, pp.9:16-10:17) that the allegations about purported control over plan assets are conclusory, that unpaid contributions to employee benefit funds are not plan assets, and that there are insufficient allegations in the complaint to establish that there was any pre-existing fiduciary relationship. The tentative ruling is that all of these arguments are persuasive.
The debtor/defendant cites persuasive authority in support of the foregoing analysis. It is one thing if an employer misuses employee contributions to a trust fund, but if the funds have never reached the
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employee and instead are contributions that the employer was supposed to make then the failure to pay that contribution is not, by itself, enough to establish a fiduciary relationship with respect to those funds. See In re Quinones, 537 B.R. 942, 945 n.2 (Bankr. N.D. Cal. 2015) (distinguishing employer contributions "from the situation where an employer has control over funds that were withheld from employees' paychecks"). The complaint does not include sufficient allegations to determine which type of contribution is at issue.
In sum, the complaint does not contain enough allegations about the precise relationships among the parties so as to be able to figure out when the debtor/defendant's duties arose and to whom. The tentative ruling is to set the same deadline to amend the complaint as for the first claim for relief.
Unless this Court is persuaded to depart from the foregoing tentative ruling it will be adopted as this Court's final ruling on the motion to dismiss. The debtor/defendant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge) at this time? The tentative ruling is to set a deadline of 5/1/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 2/5/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): TBD Expert(s) - deadline for reports: TBD
Expert(s) - discovery cutoff (if different from above): TBD Dispositive motions to be heard no later than: TBD
Joint Status Report: 6/5/18
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Continued status conference: 6/19/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 4/17/18 at 11:00 a.m. to be heard concurrently with defendant's motion to dismiss. Appearances are not required on 4/10/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
Defendant(s):
RICKY TYRONE GRAYSON Represented By
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Ryan A Stubbe
Plaintiff(s):
Construction Laborers Trust Funds Represented By
Marsha M Hamasaki Jeffry D Sackman
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
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Adv#: 2:17-01365 Naranjo v. Moisa et al
Docket 27
Please see the tentative ruling for the Adversary Proceeding Status Conference (calendar no. 4, 4/17/18 at 11:00 a.m.).
Debtor(s):
Virginia Naranjo Represented By David R Chase
Defendant(s):
Rosa Moisa Pro Se
Edward Trevino Moisa Pro Se
Movant(s):
Virginia Naranjo Represented By David R Chase
Plaintiff(s):
Virginia Naranjo Represented By David R Chase
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:17-01365 Naranjo v. Moisa et al
(2) Declaratory Relief
fr. 10/03/17, 11/17/17, 12/5/17
Docket 1
Tentative Ruling for 4/17/18:
Grant the motion for an order allowing service of process via publication (dkt. 27), as supplemented (dkt. 34), for the reasons stated at the hearing on 12/5/17 (see dkt. 33). Continue the status conference in this adversary proceeding to 5/29/18 at 11:00 a.m. (no written status report required).
Appearances are not required on 4/17/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The tentative rulings are as follows.
No relief against unnamed defendants. At the initial status conference on 10/13/17, and in the tentative ruling for that status conference (reproduced below), this court questioned how quiet title relief could be granted against persons who are not named as defendants. The motion for a default
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judgment does not address that issue, and yet it seeks to quiet title as against all persons, whether or not they are named as defendants. The tentative ruling is to deny that relief.
No relief against decedent whose estate has not been properly served. In addition, the plaintiff appears to be seeking a default judgment against a decedent, Ms. Rosa Moisa, without having served anyone who could properly accept service for the decedent. In fact, in preparing for this hearing this court noticed that the plaintiff had the complaint served on herself as administrator of Mr. Moisa's esate (see adv. dkt. 5 at PDF p.4). How is that proper?
To make matters worse, it appears that she is not actually the administrator: she declares that she is currently seeking to be appointed as the administrator of the decedent's estate. See adv. dkt. 21, Plaintiff Decl., p.4, para. 14.
How could counsel for the debtor seek a default judgment on this foundation?
No relief against persons with whom there is no actual case or controversy. The plaintiff also seeks relief against Mr. Edward Trevino Moisa (the son of the decedent Ms. Moisa). The plaintiff alleges that there is an actual case or controversy involving him (and Ms. Moisa), but the plaintiff also alleges that after his mother transferred the property to Mr. Moisa he voluntarily transferred the subject property to the plaintiff via grant deed (dkt. 21, Plaintiff Decl., p.2, para. 5-6), and that Mr. Moisa "takes no position" and has not responded to the complaint (id. p.5:3). How is there an actual case or controversy involving Mr. Moisa (or his mother)?
Possible real party in interest? It is unclear from the filed papers, but the party against whom the plaintiff might really be seeking relief is the county of Los Angeles. She alleges that when she attempted to refinance the property "the Title Company for the future Lender noticed the discrepancy in the Grant Deeds (regarding Legal Description), that LA County changed the designation back to Rosa Moisa as the current owner." Id., p.4, para. 13 (emphasis added.) But it is not clear what this means - did LA County commit an error in indexing? Did it improperly alter the text of some grant deed? Or did LA County allegedly do something else to "change the designation" in some
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document or record?
Nor does the plaintiff point to any document that reflects any such confusion. It is not this court's role to scour the record to try to figure out what the plaintiff means.
Conclusion. This court is very empathetic to the plaintiff (the debtor), who alleges that she purchased the property when it had no equity, and made payments to save the property from foreclosure, and yet, although she has obtained this court's approval to refinance the property, she has been unable to do so because of some sort of discrepancy in the real estate records regarding her title to the property. But the papers filed by the debtor's counsel fail to explain the actual issue, and in any event appear to be wholly inadequate to address whatever the issue might be.
In addition, this court is very troubled that the filed papers appear to violate basic legal principles and ethical obligations. It appears that counsel for the debtor has sought a default judgment based on (i) the plaintiff/debtor serving herself, (ii) as the purported administrator of the estate of a decedent/defendant, even though she has not yet been appointed in that role, and (iii) with whom there does not appear to have been any actual case or controversy. This appears to be an attempted fraud on the court, intended to obtain a default judgment in the hope of binding other persons who have not been named as defendants.
Is there any reason why this court should not issue an order to show cause why sanctions should not be imposed? Meanwhile, what can be done to address whatever is the actual issue that is holding up the debtor's refinance of her real property?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Continue to 12/5/17 at 11:00 a.m. to heard concurrently with the motion for a
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default judgment. Appearances are not required on 11/7/17.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 10/3/17:
Appearances required.
There is no tentative ruling, but the plaintiff should be prepared to address the exact nature of the relief sought, and how this court can grant relief as against persons who are not named as defendants.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Virginia Naranjo Represented By David R Chase
Defendant(s):
Rosa Moisa Pro Se
Edward Trevino Moisa Pro Se
Plaintiff(s):
Virginia Naranjo Represented By David R Chase
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18
Docket 1
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing, this Court continued the matter to allow the parties time to meet and confer about the various deadlines that this court should set in this adversary proceeding and/or court-ordered mediation. This court also directed the parties to file a status report by 4/3/18, but the parties have not done so.
There is no tentative ruling, but the parties are directed to address why they have not filed a status report, and to provide an oral status report, and are cautioned that continued failure to adhere to the applicable rules and orders of this Court may result in sanctions. The tentative ruling is to continue this status conference to 5/29/18 at 11:00 a.m. with a brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required but telephonic appearances are encouraged if
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advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties requested a brief continuance of this status conference from 2/27/18 to today's date (see Joint Status Report, adv. dkt. 10). At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). There is no tentative ruling, but the parties should be prepared to discuss the status of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 3/6/18 at 11:00 a.m. Appearances are not required on 2/27/18.
Reasons: At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). The plaintiff and one defendant (the debtor) have now filed a joint status report (adv. dkt. 10) requesting a brief continuance.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
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Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address why they failed to file the required status report, and also the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/6/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines/dates: This adversary proceeding has been pending since 11/21/17. The tentative ruling is to set the following deadlines/dates. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
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Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/6/18
Continued status conference: 2/27/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
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Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:17-01485 Gonzalez v. Macmillan et al
Docket 1
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should apprise this court about the status of any appeals or other matters (see dkt. 31, order granting in part plaintiff's motion for summary judgment, and dkt. 35, notice of appeal). The tentative ruling is to set a continued status conference for 7/17/18 at 11:00 a.m., with a brief status report due 7/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/20/18:
Appearances required.
Motion for summary judgment (adv. dkt. 14-18, the "MSJ"); opposition papers (adv. dkt. 22-25); and reply papers (adv. dkt. 26-27). The tentative ruling is to deny in part and grant in part the MSJ, as set forth below.
Legal standards. The legal standards governing motions for
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summary judgment are well known, do not appear to be disputed by the parties, and need not be repeated in this tentative ruling.
First claim for relief (fraudulent transfer). Although the complaint (adv. dkt.1) asserts fraudulent transfer claims under both California law and the Bankruptcy Code, the MSJ limits this to 11 U.S.C. 548. The MSJ also asserts only constructive, not actual, fraud. See adv. dkt. 14, pp.2:21-3:1.
The complaint alleges less than reasonably equivalent value (11
U.S.C. 548(a)(1)(B)(i)) - namely, transfers by the debtors/defendants for no value from the debtors and/or their revocable trusts (the assets of which apparently could be reached by creditors) to irrevocable trusts. But to establish the elements of a constructively fraudulent transfer the plaintiff must also establish one of three types of insolvency (commonly referred to as "balance sheet," "inadequate capital," or "cash flow" insolvency) or else a transfer to an insider under an "employment contract." See 11 U.S.C. 548(a) (1)(B)(ii)(I)-(IV). There is no allegation about any employment contract, so the plaintiff must establish some type of insolvency.
The MSJ refers to balance sheet insolvency (11 U.S.C. 101(32A)). But the complaint never alleges that type of insolvency, so the plaintiff cannot be granted partial summary judgment as to that element (11 U.S.C. 548(a)(1)(B) (ii)(I)).
The complaint alleges inadequate capital and inadequate cash flow (in language that roughly parallels 11 U.S.C. 548(a)(1)(B)(ii)(II)&(III)). But the MSJ extrapolates that those types of insolvency could be presumed based on the bankruptcy schedules many months after the transfer, and from the sheer number of lawsuits and eventual judgments against the defendants and other circumstantial evidence. Those things might (or might not) be persuasive at trial, but they are insufficient to establish a lack of genuine issue of fact.
Second claim for relief (declaratory relief related to nature of the trusts). The complaint (adv. dkt. 1, para. 23) seeks a declaratory judgment (i) that the debtors/defendants are "beneficiaries" of the trusts within the meaning of California Probate Code 15304, (ii) that the benefits the debtors/defendants receive from the trusts are "property of the estate" under 11 U.S.C. 541, and (iii) that the trusts qualify as "self-settled trusts" under California law, which the MSJ uses as shorthand for a trust the assets of which are reachable by creditors.
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Various provisions of the Bankruptcy Code define what property is part of the bankruptcy estate:
The bankruptcy estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). It does not include, however, "any power that the debtor may exercise solely for the benefit of another," 11
U.S.C. § 541(b)(1), nor does it include "[p]roperty in which the debtor holds ... only legal title and not an equitable interest." 11
U.S.C. § 541(d). Similarly, the estate does not include property containing "[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law." 11 U.S.C. § 541(c)(2). [In re Cutter, 398 B.R. 6, 18-19 (9th Cir. BAP 2008).]
Under California law:
If the settlor is a beneficiary of a trust created by the settlor and the settlor’s interest is subject to a provision restraining the voluntary or involuntary transfer of the settlor’s interest, the restraint is invalid against transferees or creditors of the settlor. The invalidity of the restraint on transfer does not affect the validity of the trust.
If the settlor is the beneficiary of a trust created by the settlor and the trust instrument provides that the trustee shall pay income or principal or both for the education or support of the beneficiary or gives the trustee discretion to determine the amount of income or principal or both to be paid to or for the benefit of the settlor, a transferee or creditor of the settlor may reach the maximum amount that the trustee could pay to or for the benefit of the settlor under the trust instrument, not exceeding the amount of the settlor’s proportionate contribution to the trust. [California Probate Code 15304]
The California Supreme Court has held that to the extent that the settlor of a trust is also a beneficiary, creditors can reach the property held by the trust:
It is against public policy to permit a man to tie up his property in such a way that he can enjoy it but prevent his creditors from reaching it, and where the settlor makes himself a beneficiary of a trust any restraints in the instrument on the involuntary alienation
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of his interest are invalid and ineffective. Since [the settlor] was the sole beneficiary, all the property in the trust is subject to the claims of his creditors. [Nelson v. Cal. Trust Co., 33 Cal.2d 501, 501-02 (1949) (emphasis added)]
These principles have been more recently reaffirmed in a decision of
the Ninth Circuit Court of Appeals:
[U]nder California law, a settlor of a spendthrift trust cannot also act as beneficiary of that trust (i.e., California law prohibits "self-settled" trusts). See Cal. Prob.Code § 15304(a) (West 1987). California law voids self-settled trusts to prevent individuals from placing their property beyond the reach of their creditors while at the same time still reaping the bounties of such property. See Nelson v. California Trust Co., 33 Cal.2d 501, 202 P.2d 1021,
1021 (Cal. 1949). [In re Moses, 167 F.3d 470, 473 (9th Cir.
1999)]
In addition, the MSJ cites authority that if beneficiaries exercise "excessive" control over a trust then under California law they cannot "shield that trust with an anti-alienation provision lacking true substance." In re Moses, 167 F.3d 470, 473 (9th Cir. 1999) (citation omitted) (emphasis added). See also In re Cutter, 398 B.R. 6, 22 (9th Cir. BAP 2008). MSJ (adv. dkt. 14, p.10:1-14).
The debtors argue that their situation is different from that in Cutter because "the Debtor in Cutter could potentially use all the Trust's principal and income to maintain his standard of living, without limitation" whereas "[t] here is no such provision" in the debtors' trusts. Dkt. 22, p.3:22-26 (italics added to case name). That distinction of Cutter (and the other authorities cited above) is unpersuasive.
The MSJ points to the following facts in support of its argument that (i) the debtors are also beneficiaries and (ii) the anti-alienation provisions of the trust lack "true substance." The debtor/defendants do not raise any genuine contrary issues of fact.
The debtors deducted mortgage interest and real estate taxes on their 2015 tax returns. See dkt. 18, p.4:5-9 (and evidence cited therein).
During the "initial period" of the trusts (the earlier of the grantors' deaths or 16 years) the debtors can continue to live in the property rent-free. See Dkt. 18, p.4:10-15 (and evidence cited therein).
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During that same period, any net income or excess cash is
distributed to the debtors. See Dkt. 18, p.4:16-21 (and evidence cited therein).
The debtors can manage the property as "absolute owners."
See Dkt. 18, p.4:22-28 (and evidence cited therein).
The debtors can loan money to themselves and/or use the property to secure loans to themselves. See Dkt. 18, p.5:2-7 (and evidence cited therein).
During their lifetime, the debtors can make discretionary distributions to their children, and upon their deaths the trust assets are to be distributed to their children. See Dkt. 18, p.5:8-12 (and evidence cited therein).
Based on the foregoing, it appears that the debtors are indeed beneficiaries of the trusts to a large extent, and moreover the anti-alienation provisions of the trust lack "true substance" as that term has been used in the cited authorities. Accordingly, the tentative ruling is to grant the MSJ on the second claim for relief.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20). The parties should be prepared to address whether there are any non- mooted matters left to resolve in this adversary proceeding, if this Court is not persuaded to depart from the foregoing tentative ruling on the MSJ.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/13/18:
Continue this status conference to be concurrent with the hearing on the
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pending summary judgment motion, which is presently scheduled for 3/20/18 at 11:00 a.m. Appearances are not required on 2/13/18.
This court has reviewed the parties' late-filed joint status report (adv. dkt. 10, 11) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (at the hearing on 12/5/17). See also adv. dkt. 10, 11.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 5) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re
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Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
This court recognizes that, at least at this stage, the attorney who filed the answer (dkt. 4) for both trustees of the trust has also executed the Status Report (dkt. 5) on behalf of one of the defendant trustees (the debtor/defendant) asserting that neither of them can consent to this Bankruptcy Court entering a final judgment because third party beneficiaries of the trust allegedly have a right to have their rights litigated "outside of this venue." Counsel for the answering defendants should be prepared (a) to explain whether this is a Stern objection or something else and (b) whether both answering defendants or only one of them takes this position, and if the former, why he did not execute the status report on behalf of both of them.
Counsel for the plaintiff should be prepared to address whether the plaintiff contends that there are no additional parties who need to be joined, and why.
Mediation. The plaintiff suggests in the Status Report (adv. dkt. 5) that mediation, if any, should not be ordered before dispositive motion(s) are heard, which the plaintiff anticipates will be by 3/1/18. The tentative ruling is to revisit the issue of mediation after that date.
Deadlines: This adversary proceeding has been pending since 9/26/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 3/1/18 Expert(s) - deadline for reports: 2/20/18
Expert(s) - discovery cutoff (if different from above): 3/1/18 Dispositive motions to be heard no later than: 3/13/18 Joint Status Report: 1/30/18
Continued status conference: 2/13/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 4/10/18 Pretrial conference: 4/17/18 at 2:00 p.m.
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Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: 4/19/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 4/23/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Docket 26
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
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Docket 253
- NONE LISTED -
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Joseph Martin Barrett Represented By Damion Robinson
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Docket 1489
Please see the tentative ruling for the status conference (calendar no. 3.1, 4/17/18 at 1:00 p.m.).
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Movant(s):
Saeed Cohen Represented By
Ron Bender Ron Bender
Krikor J Meshefejian Krikor J Meshefejian Kurt Ramlo
Kurt Ramlo
Beth Ann R Young Beth Ann R Young
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Docket 0
Tentative Ruling for 4/17/18:
Grant the motion to clarify issues regarding class 8 claims (dkt. 1489) as amended by the supplement (dkt. 1496), (b) issue an order substantially in the form attached as an exhibit to that supplement (the debtor is directed to lodge that proposed order within 7 days after this hearing), and (c) set a continued post-confirmation status conference for 7/17/18 at 2:00 p.m., with a brief status report due 7/6/18. Appearances are not required on 4/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
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Docket 78
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference (calendar no. 6, 4/17/18 at 1:00 p.m.).
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
Movant(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Sheila Esmaili Sheila Esmaili Sheila Esmaili Sheila Esmaili Sheila Esmaili Sheila Esmaili Sheila Esmaili
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fr. 1/23/18, 02/13/18, 3/20/18
Docket 59
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference (calendar no. 6, 4/17/18 at 1:00 p.m.).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 7, 3/20/18 at 1:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference (calendar no. 8, 2/13/18 at 1:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 3, 1/23/18 at 1:00 p.m.).
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
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Docket 1
Tentative Ruling for 4/17/18:
Continue all matters set for today to the same date and time as the continued status conference, as set forth below. Appearances are not required on 4/17/18.
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that debtor lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18.
At the continued hearing on 2/13/18, the debtor stated that he reached a settlement with Wells Fargo regarding plan treatment and would be filing a motion to allow late-filed ballot. On 3/12/18, the debtor filed that motion (dkt. 78), with a hearing scheduled for this date. Debtor's ability to confirm the Amended Plan apparently depends upon whether this court accepts Wells Fargo's late-filed ballot.
For the reasons stated below, the tentative ruling is to continue the hearing on approval of debtor's disclosure statement and plan to the above- stated time and place, concurrent with a continued hearing on debtor's motion to accept late-filed ballot.
Motion to Accept Late-Filed Ballot (dkt. 78)
Service. The Motion was not properly served on American Express at the address listed in its proofs of claim (claim nos. 4-1 and 6-1) (nor is it served in an alternative manner that might satisfy Rule 7004 because it was not served to the attention of an officer or agent pursuant to Rule 7004(b)(3) (FRBP)). Since American Express cast the only ballots against debtor's plan, it is particularly important that it be given proper service.
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The tentative ruling is to continue the hearing to the same date and
time as the continued status conference (see below) and direct the debtor to re-serve the Motion on American Express. This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the debtor serving all papers on the day after the current hearing date and filing a proof of service. Alternatively, debtor may self-calendar a continued hearing on regular notice.
Exit strategy. At the continued hearing, if this Court does not approve the debtor's motion to accept late-filed ballot, the debtor should be prepared to address what his exit strategy from bankruptcy is and whether this case be dismissed.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Continue to 4/17/18 at 1:00 p.m. to be heard concurrently with the debtor's motion to allow late-filed ballot (dkt. 78). Appearances are not required on 3/20/18.
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that he lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a
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deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18.
At the continued hearing on 2/13/18, the debtor stated that he reached a settlement with Wells Fargo regarding plan treatment and would be filing a motion to allow late-filed ballot. On 3/12/18, the debtor filed that motion (dkt. 78), with a hearing scheduled for 4/17/18.
Exit strategy. At the continued hearing on 4/17/18, if this Court does not approve the debtor's motion to accept late-filed ballot, the debtor should be prepared to address what his exit strategy from bankruptcy is and whether this case be dismissed.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 4/17/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that he lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading,
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which was later extended (dkt. 71) to 2/7/18. That deadline has passed and, as of the preparation of this tentative ruling, no such papers have been filed.
Exit strategy. What is the debtor's strategy to exit from bankruptcy? Should this case be dismissed?
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 3/20/18 at 1:00 p.m. (if this case is not dismissed). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue this status conference and the combined hearing on final approval of the disclosure statement (dkt. 60) and confirmation of the plan (dkt. 59) to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtor's failure to file the ballot summary with respect to the plan, which was due on 1/16/18 (see Order, dkt. 61) and (b) the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the federal government.
At the continued hearing the debtor should be prepared to testify, or make an offer of proof, as to feasibility.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Income calculation. Exhibit C, Attachment 1, line 7, for income from "operations of business" requires the debtor to "attach detailed statement." No such statement appears to be provided.
Disputed claims and other prior issues appear to be adequately addressed. The revised Exhibit F (dkt. 58) lists the 16th Street Group twice: once for the undisputed portion and once for the disputed portion - if the dollar amount of the disputed portion of the claim is sufficient then this appears to fully address this court's concerns expressed in the tentative ruling for 11/7/17. All of this court's other concerns appear to have been fully addressed as well.
Feasibility. This court anticipates that the debtor may be required to testify, or make an offer of proof, as to feasibility at the combined hearing (set forth below) on final approval of the disclosure statement and confirmation of the plan.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: 12/15/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 2/27/18 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 54) and disclosure statement (dkt. 53)
Disputed claims. The plan contemplates non-payment to some disputed claims. Unless and until those claims are disallowed (or allowed), the debtor must establish a disputed claims reserve and pay into that reserve in order to confirm any plan.
General unsecured creditors. The plan includes a confusing mix of different listings of general unsecured creditors. Exhibit F starts with the total from the debtor's bankruptcy schedules and then reduces it by a dollar amount that appears to be random (there are no calculations to show how the debtor arrived at that reduction). Attached to Exhibit F is a copy of the debtor's bankruptcy schedules, but those are not manually marked up to show how the debtor arrived at the dollar amounts in Exhibit F.
Exhibit I lists not only general unsecured claims but also priority and secured claims, so it is not helpful to figure out how the debtor arrived at the dollar amount of reduction in Exhibit F.
Exhibit H item "(6)" lists anticipated/pending objections to claims, and provides what appear to be estimated dollar amounts, but there is no basis for such estimates and they are not tied to the reduction in total claims listed in Exhibit F.
It appears that the simpler solution would be (i) to use the "electronic option" in Exhibit F (starting at line 5) for general unsecured claims, instead of
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attaching the bankruptcy schedules, (ii) cut all unsecured claims from Exhibit I as redundant, and (iii) use a disputed claims reserve and/or obtain final orders disallowing or allowing claims and/or follow the proper procedures for claims estimation, if permissible (see 11 U.S.C. 502(c) and Rule 3018(a), Fed. R. Bankr. P.).
Tax claims. One tax claim has been withdrawn (dkt. 52). Is the tax claim listed in Exhibit A for "LACTTC" a different claim?
Pagination. The debtor's plan divides one-page exhibits onto two pages, which is somewhat confusing. The debtor may need to adjust the page margins to enable them to print on a single page.
Income calculation. Exhibit C, Attachment 1, lines 1 and 7, do not provide adequate disclosure of the debtor's income calculation. Line 1 is for "wages, salary, and commissions" but as an independent contractor the more appropriate line would appear to be line 7 for "operations of business," which requires the debtor to "attach detailed statement." In any event, the debtor cannot simply list net income without any disclosure as to the gross revenues, specific expenses, and calculation of that net income.
The debtor's failure to disclose sufficient information about revenues and expenses has been a recurring theme - see the tentative ruling for 7/11/17 (reproduced below), item "(1)(a)" under the "Third" issue. Given this history, this court will require the debtor to file and serve on the U.S. Trustee, no later than the deadline set forth below for filing an amended plan and disclosure statement, a detailed declaration providing documentation as to the basis for each aspect of the income and expense projections (the debtor may incorporate Monthly Operating Reports by reference, but cannot rely only on those MORs - the debtor must provide additional support for his projections).
Double-counting of expenses. Exhibit C, Attachment 1, line 17, includes an adequate protection payment of $325.50/mo. (with a reference to "RFS Order Dkt No. 45"), but it appears that these adequate protection payments will be replaced by the payments in Class 1A of $383.28/mo. It appears that once the added $325.50/mo. is eliminated then the cash flow might be more feasible.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file "blacklined" versions by 11/21/17
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(the spreadsheets probably will need to be manually blacklined) (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/12/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/12/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Appearances required by counsel for the debtor and by the debtor himself.
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Current issues.
Budget motion (dkt. 21). This motion is not on for hearing, but in connection with this Status Conference the debtor should be prepared to address the following concerns.
First, the debtor lists $1,350/mo. in income derived from unemployment benefits, in addition to his $6,150/mo. in business income derived from his self-employment as an independent marketing consultant, a job at which he claims to have been employed for the past year. Dkt. 21, p.
8. How can the debtor obtain unemployment benefits when he is employed? How will the budget change when those benefits cease?
Second, the debtor lists net business income but has failed to provide a breakdown of gross receipts, ordinary and necessary business expenses, and calculation of the resulting monthly net income, as required by the instructions on bankruptcy Schedule "I" line 8a. See dkt. 21 at p. 8.
Third, the debtor asserts a 50% interest in a real estate business in Miami, Buena Vista Terminal, LLC. See dkt. 1, pp. 19, 51. What is the nature of that business? Does the debtor derive any income from that business?
Finally, the debtor reports that he has just $43.43 in monthly net income to contribute to a chapter 11 plan. But the debtor has two cars and a motorcyle and over $700/mo. in automobile payments (plus "transportation" costs). Is that reasonable? See In re Concoff (case no. 2:13-bk-37328-NB, dkt. 246).
Application to employ counsel (dkt. 24). Does the U.S. Trustee have any concerns about the proposed interim payment procedures and fee sharing arrangement between Ms. Ghanooni and Ms. Esmaili?
According to the retainer letter (dkt. 24, Ex. 3, para. 4) some of the retainer was to be paid by the debtor's mother, as a gift. But the application and the Rule 2014 disclosures by proposed counsel and by the debtor assert that there is no connection with any insider, and that all funds have come solely from the debtor. Which version of the facts is true? If any portion of the retainer has been paid by a third party, that raises special concerns (e.g., was the third party fully informed, in writing, that counsel represents the DIP not the third party, and might actually have to sue the third party if there were any potentially avoidable transfers? are there any such transfers or other potential conflicts?). See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D.
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Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 9/22/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/15/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference, dkt. 8).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
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Docket 253
Revised Tentative Ruling for 4/17/18:
The tentative ruling is to grant the motion in part and deny it in part as set forth below. Appearances required.
Overview. The movant, Mr. Barrett, is a former named member of the debtor who also asserts claims against the debtor. He has filed a "Motion For Determination Of Violation Of The Automatic Stay, Or, In The Alternative, To Enjoin Related Proceeding" (dkt. 253, the "Stay Motion").
The Stay Motion concerns an action by secured creditor Wellgen Standard, LLC (successor in interest to Advocate Capital, Inc.) ("Wellgen") against Mr. Barrett and others in Tennessee - initially that action was pending in State court, but Mr. Barrett has removed it to Federal court (the "TN Action"). The Stay Motion is opposed both by Wellgen (dkt. 268) and by the Chapter 11 Trustee, Richard M. Pachulski (the "Trustee") (dkt. 269).
The tentative ruling is that Mr. Barrett is correct that secured creditor Wellgen has violated the automatic stay of 11 U.S.C. 362(a)(3). But the tentative ruling is also that any stay violation is irrelevant, for two reasons.
First, Mr. Barrett lacks standing to seek a remedy for Wellgen's alleged violation of the automatic stay, except as to any alleged damages to himself personally under 11 U.S.C. 362(k), which he does not seek in the Stay Motion. Second, and alternatively, at least to the extent that Mr. Barrett is concerned about any ongoing future violation of the automatic stay, that is irrelevant because the Chapter 11 Trustee has stated his willingness to stipulate to relief from the automatic stay.
As for Mr. Barrett's various alternative requests for relief, the tentative ruling is that they are not persuasive for the reasons discussed below.
Standing under 362. The tentative ruling is that because Mr.
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Barrett's motion does not seek damages under 11 U.S.C. 362(k) (formerly 362(h)), he lacks standing to seek any remedy under controlling Ninth Circuit authority. As pointed out by Wellgen and Trustee, the Ninth Circuit has broadly expressed the concept that creditors lack standing to seek relief under 11 U.S.C. 362:
In previous cases, we have reserved the question of whether a creditor can attack violations of the automatic stay. While there is no precedent on point in the Ninth Circuit, the majority of jurisdictions which have considered standing under the automatic stay provision, 11 U.S.C. § 362, have concluded that section 362 is intended solely to benefit the debtor estate. Language from many cases indicates that, if the trustee does not seek to enforce the protections of the automatic stay, no other party may challenge acts purportedly in violation of the automatic stay.
The trustee is charged with the administration of the estate for the debtor's and creditor's benefit. Allowing unsecured creditors to pursue claims the trustee abandons could subvert the trustee's powers. Granting claimants like Tilley and B & C standing will overburden the bankruptcy courts with litigation. [In re Pecan Groves of Ariz., 951 F.2d 242 (9th Cir.1991). See also In re Yan, 2015 WL 845570, *3 (9th Cir. BAP Feb. 26, 2015).]
Mr. Barrett cites several cases that at first seem contrary. See In re Goodman, 991 F.2d 613, 618 (9th Cir. 1993) (“Normally [certain] creditors ... shall recover damages . . . for willful violations of the automatic stay.”) (emphasis added); In re Dawson, 390 F.3d 1139, 1146 (9th Cir. 2004) (Section 362 “allows any ‘individual,’ including a creditor, to recover damages”) (emphasis added) abrogation recognized on other grounds in In re Gugliuzza, 852 F.3d 884 (9th Cir. 2017); In re Int’l Forex of Calif., Inc., 247
B.R. 284, 291 (Bankr. S.D. Cal. 2000) (“In re Pecan Groves’ holding has been overstated for the proposition that the automatic stay is solely for the benefit of the debtor, and a creditor cannot have standing under § 362(h).”).
But on closer inspection all of those cases arise under a portion of the statute that expressly grants standing for a particular type of enforcement of the automatic stay:
[A]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and
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(emphasis added).]
No such specific authorization applies to Mr. Barrett's more
generalized request for relief in the Stay Motion. He does not allege that he was "injured" by a willful violation of the stay, and his motion does not seek damages.
It is true that Pecan Groves has been distinguished on various grounds, and may be subject to criticism. See, e.g., Int’l Forex, 247 B.R. 284,
291. But this Bankruptcy Court is not persuaded that it can disregard the pronouncements in Pecan Groves, especially when there is some logic to distinguishing between a creditor who has personally been damaged by a violation of the automatic stay (and has statutory standing under section 362(k)) and another creditor who seeks to enforce the stay more generally. In the latter situation there is no statutory standing and, as Pecan Groves points out, permitting a creditor to seek remedies for violation of the automatic stay on behalf of the bankruptcy estate could interfere with the decision of the trustee (or debtor in possession) not to pursue such remedies for tactical or strategic reasons (e.g., as part of a compromise with the person who violated the automatic stay). Therefore, the tentative ruling is that Pecan Groves is binding. See generally United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (a reasoned and published ruling on any issue germane to the appeal becomes law of the circuit, regardless whether that ruling is strictly necessary to the decision).
In sum, the tentative ruling is that under Pecan Groves Mr. Barrett would only have standing to seek relief for violation of the automatic stay if he were proceeding under section 362(k). But his Stay Motion does not seek damages under section 362(k), so he lacks standing to seek any remedy for any violation of the automatic stay by Wellgen.
Despite the foregoing tentative ruling that Mr. Barrett lacks standing to seek the relief he requests in the Stay Motion, the remainder of this discussion addresses the merits of that motion for several reasons. First, this is only a tentative ruling, and at the hearing Mr. Barrett's counsel are invited to attempt to distinguish Pecan Groves. (This Court notes, however, that Mr.
Barrett still could not seek any forward-looking enforcement of the automatic stay because the Trustee has stated his willingness to stipulate to relief from
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the automatic stay. See Trustee's Response (dkt. 269) at p.3 n.3 ("To the extent the Court finds that the automatic stay applies to the Tennessee Action as presently styled, the Trustee is willing to stipulate to relief from the stay.").)
Second, this Court could raise concerns about violation of the automatic stay on its own initiative. See 11 U.S.C. 105. It is worth exploring whether Wellgen's alleged violation of the automatic stay is sufficiently troublesome to prompt this Court to do so.
Third, this Court does not wish the foregoing discussion to be misconstrued. This Court has noted that Mr. Barrett would have standing to seek damages under section 362(k), but this Court does not intend to suggest that Mr. Barrett necessarily would be entitled to any such relief. As described at the end of this tentative ruling, there may be obstacles to any request for damages.
The TN Action is stayed by Section 362(a)(3). The debtor's bankruptcy petition operates as a stay, applicable to all entities, of "any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate." 11 U.S.C. 362(a)(3). Mr. Barrett cites authority (dkt. 253, p.7:5-28) that "property of the estate" includes causes of action, and that a creditor violates the automatic stay by pursuing causes of action that belong to the bankruptcy estate, including fraudulent transfer claims.
Wellgen and the Trustee do not cite any contrary authority. Instead they argue that the TN Action is not a fraudulent transfer action but instead is an alter ego action, and the latter allegedly does not belong to the bankruptcy estate under Ahcom, Ltd. v. Smeding, 623 F.3d 1248, 1252 (9th Cir. 2010).
has stated:
Applicable law: Tennessee or California. The Ninth Circuit
The trustee stands in the shoes of the bankrupt corporation and
has standing to bring any suit that the bankrupt corporation could have instituted had it not petitioned for bankruptcy. However, the trustee's power is limited. The trustee may assert only claims belonging to the debtor corporation and has no standing generally to sue third parties on behalf of the estate's creditors.
When the trustee does have standing to assert a debtor's claim, that standing is exclusive and divests all creditors of the power to
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bring the claim. Although federal bankruptcy law applies to this
action, state law determines whether a claim belongs to the trustee or to the creditor. [Ahcom, 623 F.3d 1248, 1250 (citations and internal quotation marks omitted, emphasis added).]
Ahcom was decided under California law, and Wellgen's alter ego claims appear to be asserted under Tennessee law. Wellgen Opposition (dkt. 268), at p.4:5-6. But cf. Trustee Response (dkt. 269), p.3, n.1 (implying that California law probably applies). Wellgen does not address whether Tennessee law, like California law, does not recognize a generalized alter ego claim that could be asserted by a bankruptcy trustee.
But this Court need not decide that issue. No party has argued that there is any difference between Tennessee law and California law on this issue. Therefore for present purposes this Court applies California law.
Alter ego is a procedural remedy, not a substantive cause of action. It is an overstatement to assert that a bankruptcy estate can never seek recovery under an alter ego theory. As a California Court of Appeal has explained:
A claim against a defendant, based on the alter ego theory, is not itself a claim for substantive relief, e.g., breach of contract or to set aside a fraudulent conveyance, but rather, procedural, i.e., to disregard the corporate entity as a distinct defendant and to hold the alter ego individuals liable on the obligations of the corporation where the corporate form is being used by the individuals to escape personal liability, sanction a fraud, or promote injustice. In applying the alter ego doctrine, the issue is not whether the corporation is the alter ego of its shareholders for all purposes, or whether the corporation was organized for the purpose of defrauding the plaintiff, but rather, whether justice and equity are best accomplished in a particular case, and fraud defeated, by disregarding the separate nature of the corporate form as to the claims in that case.
The trustee of a bankrupt corporation can maintain an action
against a defendant based on an alter ego theory if there is some allegation of injury to the corporation that gives the corporation a right of action against the defendant. For example, the trustee of a
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bankrupt corporation can maintain an action against corporate
shareholders on an alter ego theory in order to recover property or pursue a right of action belonging to the bankrupt corporation, including an action to set aside fraudulent transfers or an action for conversion to recover assets of the bankrupt corporation. However, the trustee of a bankrupt corporation cannot maintain an action against defendants on an alter ego theory absent some allegation of injury to the corporation giving rise to a right of action in it against defendants. In the absence of any such allegation, the asserted cause of action belongs to each creditor individually[. A] trustee in bankruptcy may not enforce rights of action which belong to the creditors individually[,] because they are not rights in which the bankrupt claims an interest and are not assets of the estate in bankruptcy. [Shaoxing County Huayue Import & Export v.
Bhaumik, 191 Cal.App.4th 1189, 1198-99 (2011) (citations and internal quotation marks omitted, emphasis added).]
This distinction between a substantive cause of action and a procedural remedy should be kept in mind in the following discussion.
Wellgen's TN Action appears to assert fraudulent transfer claims. Mr. Barrett argues that what Wellgen characterizes as an alter ego claim actually seeks to recover alleged fraudulent transfers of the debtor's assets, and that the courts look to the substance not the label of the underlying claims. According to him, the automatic stay applies to claims "sounding in fraudulent transfer, even if the creditor couches them in terms of 'alter ego.'" Stay Motion (dkt. 253), p.8:3-8 (citing In re O'Reilly, 2014 WL 460767 (N.D. Cal.), and In re Howrey, LLP, 2014 WL 3899309 (N.D. Cal.)). He argues that in O'Reilly, for example, because "the nature of the 'alter ego' claims was diversion of firm assets, the [Bankruptcy Court, and the District Court on appeal,] determined that the case sounded in fraudulent transfer." Stay Motion (dkt. 253), p.8:14-16 (citing O'Reilly).
For several reasons the tentative ruling is that Mr. Barrett has the better of this argument. First, Wellgen's own description of the TN Action sounds like a fraudulent transfer action.
Wellgen alleges that the defendants in the TN Action knew that the debtor "was not paying its creditors" - which is one type of insolvency for fraudulent transfer purposes (often called "cash flow" insolvency). "With this
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knowledge" Mr. Layfield and others allegedly "devised a plan to transfer the high value assets out of [the debtor] to [the defendants in the TN Action], while leaving all liabilities in [the debtor] with only low value assets" - which sounds like an actual or constructively fraudulent transfer. See Wellgen's Response to motions to dismiss TN Action (Ex.1 to Reply, dkt. 277), at p.14, para. 2&3. See 11 U.S.C. 548. See also Uniform Voidable Transactions Act, codified in California at Cal. Civ. C. 3439-3439.14, and predecessor UFTA.
Second, and more generally, Wellgen's allegations sound like an injury to the debtor generally, rather than some sort of conduct in which only Wellgen was harmed by the debtor's disregard of the separateness of the debtor and some alleged alter egos. "If the debtor suffered an injury, the trustee has standing to pursue a claim seeking to rectify such injury" and the trustee only lacks standing when third parties (Mr. Layfield and others) have "injured not the bankrupt corporation itself but a creditor of that corporation." Smith v. Arthur Andersen LLP, 421 F.3d 989, 1002-03 (9th Cir. 2005) (citation and internal quotation marks omitted).
Third, the relief that Wellgen seeks in the TN Action certainly appears to be in conflict with preservation of the bankruptcy estate, which is a principal purpose of the automatic stay. Put differently, if the debtor's assets have been fraudulently transferred and Wellgen seeks to recover those assets, that places Wellgen in direct competition with the bankruptcy estate for recovery of the same assets. The tentative ruling is that this effectively takes "possession" of or exercises "control" over property "of" or "from" the estate - namely, the estate's interest in the transferred assets themselves, and the estate's causes of action for recovery of those assets. In other words, the TN Action appears to come within the scope of acts that are stayed under section 362(a)(3).
It is true that the alter ego claims hypothetically could be founded on grounds that would be very different from a fraudulent transfer claim, and theoretically alter ego claims could involve a different body of assets than fraudulent transfer claims (although Wellgen has not raised any such argument). But this Court finds persuasive Judge Montali's analogy in the O'Reilly case to how the automatic stay would protect a bankruptcy estate's partial interest in recovery of real property ("Black Acre") even if a creditor had a separate claim against Black Acre. The competing claims against Black Acre need not be co-extensive for the automatic stay to protect the estate's interest in Black Acre.
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In sum, the gravamen of Wellgen's complaint is that assets were
fraudulently transferred to evade creditors' claims. The result is both (i) that Wellgen's claim conflicts with the bankruptcy estate's fraudulent transfer claims in the same assets and (ii) that the particular type of alter ego recovery that Wellgen seeks is not the usual type of alter ego recovery that the trustee lacks standing to pursue - rather, it is one possible remedy that can expand the recovery of any fraudulent transfers that the bankruptcy estate could seek to pursue. Under either of these two alternate analyses, the automatic stay applies.
That does not end the analysis. First, there are alternative theories advanced by Mr. Barrett. Second, the end of this tentative ruling addresses the bigger picture.
Mr. Barrett's alternative arguments.
Mr. Barrett's reliance on the "exceptional circumstances" doctrine is not persuasive. This Court is not persuaded that the Ninth Circuit would extend the automatic stay to non-debtors under the so-called "exceptional circumstances" doctrine, as argued by Mr. Barrett. See Stay Motion (dkt. 253), at pp.9:25-11:25. The Ninth Circuit has rejected protection of non-debtors even in confirmed chapter 11 plans under the analogous provisions of the discharge injunction (see, e.g., In re American Hardwoods, Inc., 885 F.2d 621, 623-24 (9th Cir. 1989)) so it seems highly unlikely that the Ninth Circuit would interpret the automatic stay to protect third parties when then plain words of the statute do not do so.
The remedy is for the third party to file its own bankruptcy petition if it needs the protections of the automatic stay. Alternatively, if protection of a third party is sufficiently important to the bankruptcy estate, then the estate can seek injunctive relief under In re Excel Innovations, Inc., 502 F.3d 1086 (9th Cir. 2007).
Mr. Barrett's request for a preliminary injunction is not properly presented. A request for injunctive relief requires an adversary proceeding per Rule 7001(7) (Fed. R. Bankr. P.). The Stay Motion was not brought in an adversary proceeding, so it is insufficient to request injunctive relief beyond enforcement of the automatic stay.
Bigger picture. Notwithstanding the tentative ruling in part "(3)"
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above that the automatic stay applies to the TN Action, it appears that Wellgen has a security interest in the assets to be recovered. Therefore the larger question is whether Wellgen or someone else should prosecute one or more actions for recovery of funds from the defendants named in the TN action, for the benefit of both Wellgen and the bankruptcy estate. As noted above, the Trustee has indicated a willingness to stipulate to relief from the automatic stay. That appears to be within the reasonable business judgment of the Trustee given Wellgen's apparent security interest. In other words, Wellgen has the most direct interests and the bankruptcy estate has only residual interest, so it probably makes sense for Wellgen to prosecute any actions for recovery of assets that the bankruptcy estate could recover, and either apply those recoveries directly to reduce its secured claim, or recover assets for the benefit of the bankruptcy estate including its secured claim.
The parties should be prepared to address the precise nature of any such arrangement between Wellgen and the Trustee. For example:
will the Trustee and Wellgen stipulate to relief from the automatic stay - possibly including retroactive annulment of the automatic stay - for Wellgen to be able to continue prosecuting the TN Action and/or the bankruptcy estate's fraudulent transfer claims, and/or
will Wellgen prosecute claims on behalf of the estate (which will be essentially on its own behalf because of its very substantial secured claim), and/or
will Wellgen's counsel prosecute the bankruptcy estate's claims as special counsel, or
will Wellgen and the trustee agree to some sort of allocation of any recoveries, perhaps allocating all recoveries up to Wellgen's claim to it, with any remainder allocated to the bankruptcy estate, and/or
will the parties agree to some other arrangement? See generally In re Maximus Computers, Inc., 278 BR 189, 197-98 (9th Cir. BAP 2002).
Based on the foregoing possibilities, it is questionable whether Mr.
Barrett would have any claim for damages for any violation of the automatic stay by Wellgen. It appears that either the bankruptcy estate or Wellgen can seek recovery of the assets that allegedly were wrongfully or fraudulently transferred, and moreover the estate probably has just as much ability to seek recovery of any avoided transfers on alter ego theory as Wellgen, so it is not apparent how Mr. Barrett has been damaged by the fact that the plaintiff is
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Wellgen rather than the Trustee.
Conclusion.
For the foregoing reasons the tentative ruling is that Mr. Barrett lacks standing to seek the relief he requests in the Stay Motion. Alternatively, supposing for the sake of discussion that he had standing, the tentative ruling is that although he is correct that Wellgen has violated the automatic stay, that makes no difference because the Trustee is willing to stipulate to relief from the automatic stay, and there is no apparent damage to Mr. Barrett from the fact that the litigation has been commenced by Wellgen rather than the Trustee.
Unless this Court is persuaded to depart from this tentative ruling in any material respect, Wellgen is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Joseph Martin Barrett Represented By Damion Robinson
2:00 PM
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
fr. 3/20/18, 4/10/18
Docket 239
Tentative Ruling for 4/17/18:
Chambers has been informed that this matter has been resolved consensually. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 4/17/18 at 2:00 p.m. to permit the parties to engage in settlement discussions. Appearances are not required on 4/10/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Docket 31
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 229). Appearances are not required on 2/27/18.
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Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 153). Appearances are not required on 12/12/17.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 2/27/18 at 1:00 p.m., brief status report due 2/13/17.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Adopt the trustee's recommendation regarding re-issuance of a notice of case commencement, with a new bar date of December 31, 2017. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/19/17:
Appearances required.
Current issues.
Order for relief. This case was commenced as an involuntary chapter 7, and thereafter the debtor filed a motion (dkt. 19) to convert this case to chapter 11, which this court treated at a hearing on 8/8/17 as a consent to an order for relief conditioned on such converstion. This court orally ordered relief and granted the motion to convert to chapter 11, and although the latter order was reduced to writing (dkt. 25) the former was not. The tentative ruling is to direct the Chapter 11 Trustee to prepare and lodge a written order, memorializing that the oral order for relief was effective on 8/8/17. The parties should be prepared to address whether that written order should modify any deadlines that otherwise would apply (see next paragraph), notwithstanding that all parties in interest appear to have been present in person or on the telephone at that 8/8/17 hearing.
Lack of information. The Chapter 11 Trustee's status report (dkt.
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79) indicates that the debtor has yet to provide information on numerous issues, notwithstanding Rule 1007(a)(2), (b) and (c). The docket does not reflect that the debtor has filed bankruptcy schedules, a statement of financial affairs, or other information, or filed any motion for extention of time. What is the current status, and what additional action may be appropriate?
Clients. This court has approved a client transfer protocol (dkt. 83). What is the status of those transfers?
Reconversion? The debtor's status report (dkt. 80, at PDF p.3:4-21) suggests that, although the debtor and other parties in interest
stipulated (dkt. 38) to the appointment of a chapter 11 trustee, and this court approved that stipulation (dkt. 42), nevertheless this case is essentially being operated as a chapter 7 liquidation and should be converted back to chapter
What are the positions of parties in interest on that issue?
Joint administration? Should this case be jointly administered (not procedurally consolidated) with the case of Maximum Legal (California), LLP (Case No. 2:17-bk-18433-NB)?
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: TBD after bankruptcy schedules are filed.
Plan/Disclosure Statement*: Do not file or serve until further order of this court.
Continued status conference: 10/17/17 at 1:00 p.m., brief status report due 10/10/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By
2:00 PM
Malhar S Pagay James KT Hunter
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 152
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
2:00 PM
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
David Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) LTD Pro Se Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 148
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
2:00 PM
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
David Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) LTD Pro Se Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 151
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
2:00 PM
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
David Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) LTD Pro Se Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
3) Interfering with Economic Relationship; 4) Slander of Title;
5) Quiet Title; 6) Declaratory Relief
fr. 8/22/17, 11/14/17, 1/23/18, 02/13/18, 03/06/18
Docket 1
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 7, 4/17/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 8, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 11/14/17:
Appearances required. The tentative ruling is to deny the motions for default judgments, without prejudice, for the reasons set forth below, and to set a continued status conference for 1/30/18 at 2:00 p.m.
On the one hand, there appears to be successful prosecution of this adversary proceeding because, according to the plaintiff's status report (adv. dkt. 92), all of the defendants have either agreed to the requested declaratory
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relief or have defaulted. On the other hand, there are some fundamental issues that appear to prevent this court from granting default judgments at this time.
Self-calendaring error. The motions for default judgments were only served on 10/27/17. See, e.g., Motion for Default Judgment Derek Wilshee (dkt. 83, 74) (collectively, the "Wilshee Default Motion"). That is insufficient time prior to the hearing, under the applicable rules, nor was there any cover notice of the hearing date and deadline for any opposition or response.
Jurisdictional issues.
Personal jurisdiction. Does the complaint adequately establish personal jurisdiction over each defendant? At least one defendant is alleged to be a resident of Australia (dkt. 1, para. 14), although the plaintiff has voluntarily dismissed claims against that defendant (dkt. 107). Are each of the defaulting defendants subject to personal jurisdiction?
Subject matter jurisdiction, and abstention. The complaint and motions for default judgment make somewhat vague assertions of other action(s) that were or are pending in other courts apparently involving the same subject matter, and involving at least preliminary injunctive relief if not other relief. Can this Bankruptcy Court assume jurisdiction over matters that are pending in other courts? Must or should this Bankruptcy Court abstain?
Allegations of wrongdoing. Where is the analysis tying each of the defaulting defendants to one or more of the specific acts of wrongdoing bringing them within the claims in the complaint? For example, the only allegation in the complaint regarding Mr. Wilshee (dkt. 1, para. 14) appears to be that he was at one time an officer of the debtor. How is that an act of wrongdoing?
The Wilshee Default Motion seeks a default judgment against Mr.
Wilshee of $431,472,300.00 (dkt. 74, at PDF p.51 of 53). How is he responsible for such alleged damages? Does the complaint need to be amended to establish, as against one or more of the defaulting defendants, how they are alleged to be liable?
Calculation of damages. An exhibit to the plaintiff's motions for default judgments asserts that "Based on Department of Conservation Records
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[available on a website and/or verified by whom?], these leases [which leases? the ones that allegedly were supposed to be assigned but were not?] were producing 1730 barrels of Oil a day [when?]" and "[w]ith today's technology [how is today's technology better?], a conservative figure would be 3500 barrels a day [based on whose expert opinion?] that will be used as a figure for all the losses caused by Western States International [how about other defendants?]." Dkt. 83, Ex.A, at PDF p.17 of 53. The same exhibit shows a calculation of alleged damages based on "Approx Production" of "105,000" which is far more than 3500 barrels (perhaps using a 30-day presumptive month multiplied by 3500 barrels a day?), an "Average Oil Price [from what source?]," and a "Cost [to extract, market, refine, deliver, and sell the oil - or some other or different set of things? based on what expert's opinion?]." Based on the foregoing questions, and applying Rule 55(b)(2) (Fed. R. Civ. P.) (incorporated by Rule 7055, Fed. R. Bankr. P.), it appears that additional evidence and a "prove up" hearing will be needed to determine the amount of damages, if not other issues.
Alleged costs, attorney fees, and interest. The debtor/plaintiff asserts $1 million in costs (dkt. 74 at PDF p.51 of 53) - how is that possible? What are the components? Attorney fees are alleged to be $300,000 - this case has barely commenced, so how is that possible? Where are the daily time sheets and/or other support for this figure? Prejudgment interest is alleged to be at a 10% rate per year starting 1/1/11. What is the contractual or statutory basis for that interest rate and that commencement date? The purported damages were incurred month by month, so how can interest run from before those damages were incurred?
Declaratory relief. The plaintiff makes broad allegations about the rights under various contracts, or arising from breaches of those contracts or by operation of law. Where is the support for these allegations? The plaintiff cannot place the burden on this court to sort through numerous provisions of various contracts to piece together the plaintiff's theory. The plaintiff must provide specific, easy-to-follow analysis and evidence.
Conclusion. Because the motions for default judgments are both procedurally and substantively deficient in all of the ways set forth above, the tentative ruling is to deny them without prejudice.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. This court notes that the parties were directed to file a joint status report two weeks in advance of this hearing (dkt. 2), but have not done so. In addition, this court notes that the tentative ruling in the main case status conference (calendar no. 3, 8/22/17 at 2:00 p.m.) is to dismiss the main case, which normally would terminate this adversary proceeding.
Nevertheless, to preserve all rights in the event that this court were to be persuaded not to dismiss the main case, this court has reviewed the other filed documents and records in this adversary proceeding and issues the following tentative ruling.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
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Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 6/19/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 1/12/18 Expert(s) - deadline for reports: 1/26/18
Expert(s) - discovery cutoff (if different from above): 2/9/18 Dispositive motions to be heard no later than: 3/2/18
Joint Status Report: 11/28/17
Continued status conference: 12/12/17 at 11:00 a.m. Trial deadlines to be determined at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
2:00 PM
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
DOES 1 through 10, inclusive Pro Se
David Smushkevich Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) LTD Pro Se Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Paul Guiller Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
fr. 02/13/18, 03/06/18
Docket 125
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 7, 4/17/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
2:00 PM
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
David Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) LTD Pro Se Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
2:00 PM
1/23/18, 02/13/18, 03/06/18
Docket 1
Tentative Ruling for 4/17/18:
Continue (1) calendar nos. 5, 6 and 7 on today's calendar, and (2) the motion for relief from the automatic stay filed by Ingrid Aliet-Gass for herself and Western States International, Inc. (dkt. 130, the "R/S Motion") all as set forth below. Appearances are not required on 4/17/18.
Specifically, the tenative ruling is as follows:
Continue (a) the status conference in this bankruptcy case, (b) the status conference in adversary proceeding no. 2:17-ap-01326-NB, and (c) the debtor's motion to amend the complaint in that adversary proceeding (adv. dkt. 125, and see adv. dkt. 130, 131, 139, 142) to be concurrent with (d) the motion by the Bureau of Land Management ("BLM") to dismiss the separate adversary proceeding against it (no. 2:18-ap-01057-NB, adv. dkt. 7), which is currently scheduled for 5/8/18 at 2:00 p.m.
Continue the R/S Motion, which is currently set for 5/1/18 at 10:00 a.m., to the same date and time.
After this hearing date this Court will prepare an order continuing all of the foregoing matters and will serve it on the BLM, Aliet-Gass, and Western States International, Inc. at the addresses known to this Court, and that order will also direct the debtor to serve those parties and any other known parties with an interest in the foregoing matters.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: 7/10/17 and 1/26/18 (sufficiently served, dkt. 56, 60, 103, 107, 110, 111, 121, 123).
Plan/Disclosure Statement*: TBD.
Continued status conference: see above.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Default judgment motion - Wilshee (adv. dkt. 140). Deny for lack of service. See dkt. 140 at PDF p.4 (serving defendant at "ENTER ADDRESS HERE").
Default judgment motion - JNDDC, LLC (adv. dkt. 135). Deny for lack of service. See dkt. 135, last two pages (defendant not listed in service list).
Default judgment motion - Flavio Rodriguez (adv. dkt. 133). Deny for lack of service. See dkt. 133 at PDF p.8 (marked up by someone - movant? - to show deficiencies in completion of proof of service) and dkt. 133 last two pages (defendant not listed on service list).
Default judgment motion - Jag Pathirana (adv. dkt. 134). Grant. It appears that plaintiff has abandoned claims against defendant Jag Pathirana other than "clearing title" to the plaintiff/debtor's alleged property interests at issue in the complaint. That appears to moot the relevant concerns previously raised by this court (see adv. dkt. 116, exhibit).
Case status report (case dkt. 122) and adversary proceeding against Bureau of Land Management (Adv. No. 2:18-ap-01057-NB). The debtor should be prepared to provide an update as to the status of these matters.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: 7/10/17 and 1/26/18 (sufficiently served, dkt. 56, 60, 103,
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107, 110, 111, 121, 123).
Plan/Disclosure Statement*: TBD.
Continued status conference: 4/10/18 at 2:00 p.m., brief status report due 4/3/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status Reports (main case dkt. 122; adv. no. 2:17-ap-01326-NB, dkt. 132). The debtor/plaintiff suggests that it will be filing a motion to approve a disclosure statement. Is that premature, given the following issues?
Motion to amend complaint (adv. dkt. 125). The parties should be prepared to address the issues raised in the motion and in the oppositions filed by the California Department of Conservation, Division of Oil and Gas, and Geothermal Resources ("DOGGR") (adv. dkt. 125, 130, 131).
In addition, the debtor/plaintiff should be prepared to address whether the proposed amended complaint cures the deficiencies in the original complaint, and whether any ruling on the motion to amend the complaint should be deferred until after default judgments are (or are not) obtained on the existing (original) complaint, for the reasons set forth in this Court's Memorialization Of Reasons For Denying Motions For Default Judgments (captioned for the adversary proceeding but erroneously filed in the main
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case as dkt. 118). See also Order denying prior motions for defaul judgments (adv. dkt. 117) and subsequent Motions for default judgments (adv. dkt. 133, 134, 135).
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60, 103, 111, 121, 123); supplemental date of 1/26/18 (order served late, but the tentative ruling is to excuse that lateness, dkt. 107, 110).
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/20/18 at 2:00 p.m., status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue the status conferences in both the main case and the adversary proceeding (adv. no. 2:17-ap-01326-NB) to 2/13/18 at 2:00 p.m. with a status report due 2/6/18 (at which time other documents are also due as set forth below) for the reasons set forth below. Appearances are not required on 1/23/18.
Current issues
Reasons for continuance: (i) because of the problems noted below;
because of the debtor's untimely last-minute filing of status reports (the debtor is cautioned that continued untimely filings may result in sanctions);
because of the inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government, (iv) to be concurrent with the (improperly self-calendared) motion to amend the
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complaint, and (v) in view of the debtor's various status reports (main case dkt. 117, adv. dkt. 122, 127, 129).
Bar date. The debtor's proofs of service of the bar date order are missing exhibits and incomprehensible (see dkt. 110, 111). The debtor is directed to file, no later than 2/6/18, either a corrected proof of service or an application (supported by a declaration) to set yet another supplemental bar date - whichever is appropriate.
Status of existing complaint in adversary proceeding. On 11/20/17 this court issued an order (adv. dkt. 117) denying the plaintiff/debtor's motions for default judgments, without prejudice. The debtor now seeks to amend the complaint (adv. dkt. 125). All of these things moot the motions for default judgments so the hearings on those motions have been vacated.
In addition, the tentative ruling is to memorialize this court's reasons for denying the motions for default judgments by filing on the docket a copy of this court's adopted tentative ruling for the 11/14/17 hearings on those motions (reproduced within the tentative ruling for calendar no. 9. 1/23/18 at 2:00 p.m.).
Motion to amend complaint (adv. dkt. 125). This motion was self- calendared for 2:00 p.m. (a time that cannot be used for self-calendaring) on 2/13/18. Nevertheless, the tentative ruling is to permit that motion to proceed at that time.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60); supplemental date of 1/26/18, to be served no later than 11/15/17 (per Order, dkt. 107) but proofs of service are incomprehensible (dkt. 110, 111) - see above under "current issues".
Plan/Disclosure Statement*: TBD.
Continued status conference: as set forth above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the following issues.
Current issues. The debtor has filed a second (very belated) proof of service (dkt. 103) of this court's order (dkt. 56) setting a bar date. Under that order the bar date was set as 7/10/17 and service was required no later than 5/8/17. What does the debtor's belated service do except cause confusion? Does the debtor require a new bar date for previously unknown creditors?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60; but see above under "current issues").
Plan/Disclosure Statement*: TBD.
Continued status conference: 1/30/18 at 2:00 p.m., status report due 1/16/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
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The tentative ruling is to dismiss this case with a 180 day bar for willful failure to appear in proper prosecution, as set forth below. See 11 U.S.C. 109(g)(1). Appearances are not required.
Reasons: This case was filed on 11/23/16. The debtor's assets consist of disputed rights in hydrocarbon leases. See Status Report, dkt. 81. Realizing any value from those rights apparently depends on retaining special counsel who will diligently prosecute the debtor's claims. Despite numerous opportunities, the debtor has failed to satisfy the prerequisites for retention of special counsel.
Inadequate declarations about "connections"
At the hearing on 7/11/17 this court extensively reviewed the evidence that would be required before this court could approve the application to employ the latest proposed special counsel, Mr. Montes. That included a requirement of detailed declarations from Mr. and Mrs. Hoats regarding any transfers of any property (including intangible property) involving the debtor and any of them, as well as any other "connections" (as that term is used in Rule 2014, Fed. R. Bankr. P.) to the debtor and any other party in interest.
This court recognizes that Mr. and Mrs. Hoats are not the professionals whose employment is being sought. Nevertheless, given their very close ties to the debtor, and their failure to disclose connections to the prior proposed special counsel that raised questions about conflicts of interest, this court orally ordered the debtor to provide their declarations at the hearing on 5/2/17. That order has been ignored.
Knudsen factors
This court also directed Mr. Montes to file a declaration addressing the factors that this court must consider in assessing his request to be paid more frequently than once every 120 days. See In re Knudsen, 84 B.R. 668,
672-73 (9th Cir. BAP 1988). Mr. Montes has filed such a declaration (dkt. 82) and has adequately summarized the factors (id., p.3:15-23) but he has not adequately addressed the third factor, which he summarizes as: "any funds paid but later disapproved by the court can be recovered from the professional" in one or more of the ways listed in Knudsen. (Emphasis added.) Those ways are:
[a. Holdback] retainer payments are for only a percentage of the amount billed so that the likelihood or necessity of repayment is minimal [Mr. Montes suggests a 10% holdback, which has not been
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shown to be adequate - the typical amount is 20%, and that
typically applies only to well established firms whose ability to repay funds is reinforced by the firm's longevity and reputation or similar considerations];
[b. Bond] counsel can post a bond covering any possible reassessment [Mr. Montes has not addressed this factor];
[c. Financial ability to repay] counsel's financial position makes it certain that any reassessment can be repaid [Mr. Montes has not addressed this factor]; [and/or]
[d. Hold funds in trust account] funds paid prior to allowance are held in a trust account until a final or interim fee allowance is made [Mr. Montes has only offered to place the 10% proposed holdback in a trust account]. [Knudsen, 84 B.R. 668, at 672]
The debtor appears to cite the wrong statutory authority
The debtor's application to employ Mr. Montes (dkt. 65) requests that his employment be approved under subsection "(e)" of 11 U.S.C. 327. But that subsection only applies by its terms to an attorney who "has represented the debtor" (i.e., prepetition counsel whose employment is to continue postpetition). Id. (emphasis added).
That is not the end of the analysis, because it has been held that special counsel can be employed even when such counsel has not represented the debtor prepetition. See In re Fondiller, 15 B.R. 890, 892 (9th Cir. BAP 1981) (emphasis added), appeal dism., 707 F.2d 441 (9th Cir.
1983). Although Fondiller has been interpreted as authorizing employment under subsection (e) (see, e.g., Covenant Fin. Group of Am., Inc., 243 B.R. 450, 455 & n. 8 (Bankr. N.D. Ala. 1999)), the precise holding of Fondiller appears to be that special counsel can be employed under subsection "(a)" of Section 327 because any "omission" in subsection "(e)" does not limit the general authority in subsection "(a)." See Fondiller, 15 B.R. at 891-92 (interpreting § 327(a) by comparison with §§ 327(c) and (e)).
True, the precise statutory authority appears to make little if any practical difference, because Fondiller held that when counsel is only employed to perform limited services, then an interest "adverse to the estate" means "an adverse interest relating to the services which are to be performed by that attorney," which appears to mean that the inquiry for proposed special counsel under subsection "(a)" is the same as under subsection "(e)." Fondiller, 15 B.R. at 892 (emphasis added). Mr. Montes' declaration (included in dkt. 65) appears to meet this test because he states that he has
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no adverse interest.
Nevertheless, as stated above this court has required additional evidence from Mr. and Mrs. Hoats and that evidence has not been provided. In addition, because the debtor has sought authority under subsection "(e)" instead of "(a)" it appears not have met the technical requirements for employment of Mr. Montes.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 7/11/17:
Appearances required.
Current issues
Employment of special counsel. Deny the application to employ the Law Offices of M. Brian McMahon (dkt. 46) because he no longer intends to pursue employment. See dkt. 73, para. 3. Deny the application to emply the Law Offices of Mike Montes, Jr. (dkt. 65) due to the failure to address the issues raised by this court in the tentative ruling for 5/2/17 (reproduced below) (without reaching the issues raised by the U.S. Trustee's objection, dkt. 72, and the debtor's reply, dkt. 74). The U.S. Trustee is directed to lodge proposed orders denying each application within seven days after this hearing date.
Lack of progress. Should this case be dismissed for lack of prosecution?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/22/17 at 2:00 p.m., status report due 8/15/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for
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disposition at this hearing.
Tentative Ruling for 6/13/17:
Continue to 7/11/17 at 1:00 p.m. to allow the debtor time to prosecute an employment application regarding Mr. Motes (see debtor's case status report, dkt. 62). Appearances are not required on 6/13/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/2/17:
Appearances required. There is no tentative ruling, but the debtor's proposed attorney, Brian McMahon Esq., should be prepared to address the concerns set forth in the U.S. Trustee's objection (dkt. 49) and the other issues set forth below.
Current issues.
Proposed special counsel.
Background. On 4/5/17 the debtor filed an application for authority to employ the law offices of Mr. McMahon as special counsel under 11 U.S.C. 327(e) (dkt. 47). On 4/12/17 the United States Trustee ("UST") filed an objection to the employment application, which expressed concerns about the payment arrangement proposed in the application (dkt. 49).
The debtor filed a statement of disinterestedness for Mr. McMahon (dkt.53), and a reply (dkt.55), stating that a third party, Ms. Lilian Hoats, will be paying the attorney fees for Mr. McMahon's representation. Ms. Hoats is the CEO of Inviron Technologies, Inc. ("Managing Member"), which is the debtor's managing member (dkt. 55, Ex.1, p.1, recital "b"). Attached to the reply (dkt. 55, Ex.1) is a written document that purports to be a waiver of conflicts (if any exist) among the debtor, Ms. Hoats, and the Managing Member (the "Hoats/Managing Member Conflict Waiver").
The Attorney-Client Retainer Agreement attached to the employment application (dkt. 46, Ex.1) provides that Mr. McMahon is representing not only the debtor but also its affiliates Riverwood Energy, LLC ("Energy Affiliate") and Riverwood Resources Ltd. ("Resources Affiliate"). This court is not aware of the precise organizational and contractual relationships among the
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debtor, Energy Affiliate, and Resources Affiliate, nor of any written document purporting to be a waiver of conflicts (if any exist) among them.
Statutory provisions and rules
Although special counsel does not have to be "distinterested" (compare 11 U.S.C. 327(a)), special counsel still must not "represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed." 11 U.S.C. 327(e) (emphasis added). Under Rule 2014 (Fed. R. Bankr. P.) both Mr. McMahon and the debtor were supposed to disclose all connections between Mr. McMahon and "the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee."
The disclosures have not been adequate. This court does not know enough about the underlying litigation and the organizational and contractual relationships among the various entities to assess whether there may be conflicts of interest between the debtor, on the one hand, and Ms. Hoats, Managing Member, Energy Affiliate, and/or Resource Affiliate.
A DIP's conflicts generally cannot be waived
Any purported conflict waiver probably cannot waive actual conflicts.
See, e.g., In re Perry, 194 B.R. 875, 880 (E.D.Cal.1996) (waiver of conflict by non-debtor parties was insufficient and "[i]nformed consent could not be obtained" because "the real parties in interest in this case are the creditors, and that is not a waivable conflict"); In re B.E.S. Concrete Products, Inc., 93 B.R. 228, 235 (Bankr. E.D. Cal. 1988).
But while actual conflicts of interest create a violation of 11 U.S.C. 327 which would require disqualification of the proposed professional, the mere existence of a potential conflict of interest does not require disqualification, and it is up to the court's discretion whether the purported conflict is sufficiently threatening to the estate to warrant disqualification. In re Wheatfield Business Park, LLC, 286 B.R. 412, 421 (Bankr. C.D. Cal. 2002).
Are proposed counsel and the debtor aware of any actual conflicts?
How about potential conflicts?
The purported conflict waiver is incomplete
The Hoats/Managing Member Conflict Waiver is not actually signed by Ms. Hoats in her individual capacity (she has only signed it on behalf of the debtor's Managing Member). In addition, as noted above, this court is not aware of any purported conflict waiver among the debtor and Operating
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Affiliate or Resources Affiliate.
There might be conflicts among the debtor and Ms. Hoats A third party who funds a retainer for the debtor (the "Funder")
generally has some pre-existing relationship with the debtor, and/or some motivation to providing the funding. Those things increase the likelihood that the Funder could be the recipient of an avoidable preference, or might have alter ego liability, or otherwise might have interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a third party is not outright prohibited, it is fraught with ethical concerns. At the hearing, counsel for the debtor and proposed special counsel should be prepared to address the following.
Terms. What are the precise agreements, understandings or expectations regarding the funds -- e.g., are the funds a loan, a gift, an investment, or something else?
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and that the sole attorney-client relationship and duty of loyalty is with the debtor, not the Funder? Who provided such advice: independent counsel? counsel for the debtor? the debtor's proposed special counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing? Ms. Hoats has signed the Hoats/Managing Member conflict waiver on behalf of the debtor: how can she, acting for the debtor, waive conflicts with herself?
Other considerations. Has proposed special counsel demonstrated or represented to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Lotus Prop's LP, 200 B.R. 388 (Bankr. C.D. Cal. 1996) (rejecting per se disqualification when fees are paid by third party); and compare In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990) (per se rule). See generally In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
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Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/4/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status report. This court's previous tentative ruling (reproduced below) directed the debtor to file a status report by 3/14/17. Why has no such status report been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/7/17:
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Continue to 4/4/17 at 2:00 p.m., status report due 3/14/17. No appearances are required on 2/7/17.
(1) Current issues
This case was filed on 11/23/16. The debtor's status report (dkt. 34) states that the debtor intends to retain special counsel, and the monthly operating reports (dkt. 37, 38) appear to show no activity other than opening DIP bank accounts and paying associated fees. Although progress in this case has been slow, it does not appear efficient to hold a status conference at this time. If substantially more progress is not shown by the next status conference, this court may dismiss this case for failure to appear in proper prosecution. See 11 U.S.C. 109(g)(1), 349.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Substitution of attorney. On 12/23/16, the debtor filed a substitution of attorney (dkt. 22) reflecting that current proposed counsel is Giovanni Orantes, Esq. Why has no employment application been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/13/16:
Appearances required.
Current issues
Counsel for the debtor should be prepared to address why no status report has been filed (see dkt. 3); why the docket does not reflect that anything has been done in this case to date; and why this court should not convert or dismiss this case.
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor and by the debtor(s) themselves, pursuant to the order setting this status conference (dkt. 3).
Current issues.
First Day Motions. The debtor should be prepared to address the necessity of first day motions such as cash collateral, payroll, utilities, etc. To the extent that those motions are necessary, why have they not yet been filed?
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Deadlines/dates. This case was filed on 11/23/16.
Bar date*: to be set at the continued status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 12/13/16 at 2:00 p.m., initial status report due 11/29/16.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
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Adv#: 2:17-01485 Gonzalez v. Macmillan et al
fr. 12/5/17
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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1/23/18, 02/13/18
Docket 1
Tentative Ruling for 4/17/18:
Appearances required.
Current Issues.
B&B Liquidating, LLC (2:18-bk-11744-NB). On 2/16/18 B&B Liquidating LLC ("BBL") filed a chapter 11 petition for relief before this court. In its "first-day" motions, BBL details the troubles B&B Bachrach ("BBB") encountered post-confirmation, which resulted in the need to liquidate. See e.g., BBL Liquidating Motion, dkt. 17.
BBB should be prepared to address the debtor's progress in liquidating the estate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Continue to 4/17/18 at 2:00 p.m. in view of the debtor's post-confirmation status report (dkt. 313). Brief status report due 4/3/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue to 2/13/18 at 2:00 p.m., in view of (a) the debtor's status report (dkt. 313) and (b) the inability of the Office of the United States Trustee to appear on 1/23/18 in view of the shutdown of much of the federal government. Note: Prior to 2/13/18 this court anticipates posting a tentative ruling for a further continuance to 4/17/18 at 2:00 p.m., unless a party in interest files a status report no later than 2/6/18 requesting to be heard on 2/13/18. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Continue to 11/7/17 at 2:00 p.m. to be heard concurrent with the fee
2:00 PM
applications. Appearances are not required on 10/17/17.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/12/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any outstanding disputes with landlords, or other issues that are appropriate for disposition at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Bachrach, LLC Represented By Brian L Davidoff
2:00 PM
Docket 1
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 3/20/18
Docket 9
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
to employ Robins Kaplan, LLP as Special Counsel fr. 3/20/18
Docket 20
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 36
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 3/20/18
Docket 18
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 3/9/18
Docket 5
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 68
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
9:00 AM
Docket 22
Debtor(s):
Dana Hollister Represented By David A Tilem
9:00 AM
Adv#: 2:17-01485 Gonzalez v. Macmillan et al
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
2:00 PM
17-bk-12408-MB ICPW liquidation Corp., a California Corp. 17-bk-12409-MB ICPW Liquidation Corp., a Nevada corp.
ap-01101-MB Official Committee of Equity Holders of ICPW Liquidation Corp. v. Radians Wareham Holding, Inc. et al
ap-01011-MB Official Committee of Equity Security Holders of ICPW Liquidation Corp. (Nevada) v. Cordes et al
Docket 0
Appearances required by telephone - advance arrangements must be made through CourtCall (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address what procedures should apply to this mediation. As the parties have been advised through Judge Bason's law clerk, his mediation procedures are as follows:
[Mediation] Procedures. Judge Bason has no set requirements or procedures, except that for out-of-district mediation he requires
that the parties sign some sort of confidentiality agreement (similar to local form 708) and (2) that they agree to be bound by appropriate procedures for mediation (e.g., this district's mediation rules, available on the court's website – so that, e.g., if a party to the mediation were to violate the confidentiality requirements then that would be treated the same as a violation of the local rules and/or the local form of order directing the parties to mediation, and that could subject the offending party to sanctions). Judge Bason prefers to have an initial status conference either by phone or in person, at which he will determine if mediation briefs are needed, and other procedures. Typical procedures might include the following, at least a week in advance: (1) a short summary from each party (e.g., a 3 page
2:00 PM
letter brief served on each party plus an addendum of up to 2 pages of "Mediator's Eyes Only" discussion) and (2) key documents (e.g., up to 50 pages of excerpts and/or complete documents, preferably served on all parties, but if appropriate then some or all of the documents can also be "Mediator's Eyes Only"). If the parties can agree on these or other types of procedures then Judge Bason typically defers to them, although he may impose limitations for the sake of efficiency and his own needs.
In applying the foregoing general guidelines to this particular matter, the parties should keep in mind Judge Bason's limited knowledge of the parties' disputes (e.g., if the parties want Judge Bason to review certain filed documents prior to the mediation, they should say so). Judge Bason has intentionally avoided any review at this time, both because that would be inefficient until he knows the main points of dispute, and so that the mediation can start with a "clean slate."
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 52
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 55).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Danny Lee Holloway Sr. Represented By David Lozano
Joint Debtor(s):
Kristin Joanne Holloway Represented By David Lozano
Movant(s):
U.S. Bank National Association, as Represented By
Jenelle C Arnold Renee M Parker
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST, NA vs
DEBTOR
Docket 46
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): debtor's opposition (dkt. 48, the "Opposition").
Analysis: The Opposition fails to provide any support for its allegations. The Opposition asserts that not all required parties were served and that there was inadequate notice of the hearing (dkt. 48, p.2, section 3.a.). But the debtor provides no explanation why he believes that is so. The motion includes this Court's form notice, and the proof of service shows that the motion was served on the debtor and his attorney on 4/5/18, which is fully compliant with the applicable rules for service.
The Opposition also asserts that "[m]ore and more bankruptcy courts across the country are holding that debtors/mortgagors are intended third party beneficiaries of the HAMP program" (dkt. 48, at PDF p.3, para. 4) and on that basis the debtor apparently asserts that he has standing to raise alleged HAMP violations as a defense to foreclosure, and that this Court has the power to "order Creditor to evaluate debtor for a HAMP and put him in a trial period." Id., para. 9. The debtor fails to cite any authority for these assertions, and this Court is not persuaded that (a) it has any athority to order the movant to modify its loan (i.e., to require that the debtor be permitted to retain the property that he purchased with borrowed money, without having to
10:00 AM
abide by his promise to repay that borrowed money).
In sum, the debtor's Opposition fails to provide any explanation or authority for its assertions, and it is unpersuasive. Therefore the tentative ruling is to grant the following relief.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3) because the debtor's Chapter 13 Plan misleadingly stated that the debtor's intention was to surrender this property, and because he has failed to do so the movant has been forced to bring this motion for relief from the automatic stay, so the debtor has already obtained a delay of more than 14 days.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marc Aaron Goldbach Represented By Marc A Goldbach
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Dipika Parmar Christina J O
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CITIMORTGAGE, INC.
vs DEBTOR
Docket 274
Appearances required. There is no tentative ruling, but the parties should be prepared to address the effect of the debtor's failure to perform the terms of the confirmed plan; the debtor's response (dkt. 276); the movant's reply papers (dkt. 277-79); and the debtor's further papers including his request for a continuance (dkt. 280-84).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
Movant(s):
CitiMortgage, Inc. Represented By Todd S Garan
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 29
- NONE LISTED -
Debtor(s):
Ismael Bombasi Galera Sr. Represented By Steven A Alpert
Movant(s):
Bayview Loan Servicing, LLC, its Represented By
Merdaud Jafarnia Nancy L Lee
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 39
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Diane Turner Gates Represented By Brad Weil
Joint Debtor(s):
Steven Robert Gates Represented By Brad Weil
Movant(s):
U.S. Bank National Association, as Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
M&T BANK AS ATTORNEY IN FACT FOR LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 24
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Gabino A. Morones Represented By Stephen S Smyth William J Smyth
Movant(s):
M&T Bank as Attorney in Fact for Represented By
Nancy L Lee
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAM XVIII TRUST
vs DEBTOR
Docket 16
Appearances required. There is no tentative ruling, but the parties should be prepared to address the debtor's request for a continuance so that a proposed short sale can be approved (dkt. 21).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hector Sabale Casuyon Represented By Peter L Nisson
Movant(s):
CAM XVIII TRUST, its successors Represented By
Reilly D Wilkinson
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 21
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Barbara Ann Brackeen Represented By Nicholas M Wajda
Movant(s):
THE BANK OF NEW YORK Represented By Christina J O
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 21
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The movant has not established that the automatic stay does not apply at all. Deny the request for an order confirming that no stay is in effect. Movant has not established an exception to the automatic stay under 11 U.S.C. 362(b) or
because Movant has failed to include any analysis or evidence in support of such a finding.
The tentative ruling is to grant relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases. Grant the following relief
10:00 AM
pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378- NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Herrera Pro Se
Joint Debtor(s):
Anais Cabrera Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
10:00 AM
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
SNAP-ON CREDIT, LLC
vs DEBTOR
Docket 49
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. See dkt. 20 (debtor's motion for order continuing the stay was denied).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2), and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as
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applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sandy G. Villanueva Represented By Michael E Plotkin
Joint Debtor(s):
Antonio Figueroa Represented By Michael E Plotkin
Movant(s):
Snap-on Credit LLC Represented By
Dean A Christopherson
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 35
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ida C. Starr Represented By
Arsen Pogosov
Movant(s):
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HONDA LEASE TRUST
vs DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Oscar Ortiguero Bautista Represented By Barry E Borowitz
Joint Debtor(s):
Fe Padua Bautista Represented By Barry E Borowitz
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
FORD MOTOR CREDIT COMPANY, LLC
vs DEBTOR
Docket 24
Debtor(s):
Allyson M Theophile Represented By Matthew D Resnik
Movant(s):
Ford Motor Credit Company LLC Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MORGAN PICKS TWO, LLC
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Valentin Canales Represented By Heather J Canning
Movant(s):
Morgan Picks Two, LLC Represented By Barry L O'Connor
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
RICHARD LUDWINSKI
vs DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk- 28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for
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relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ronnetta Blackwell Pro Se
Movant(s):
Richard Ludwinski Pro Se
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
DYLAN COOPER PAUTSCH MYERS, LLC
vs DEBTOR
Docket 34
Grant as provided below, subject to any opposition at the hearing, for the reasons set forth below. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court presumes that counsel for the movant will not seek to charge the debtor or the estate any fees for appearing at this hearing because such appearance would have been unnecessary if the correct procedures had been followed (if counsel intends to do otherwise, that must be raised and argued at the hearing).
Analysis: The motion papers were not served until 4/17/18 (14 days before the hearing) (see dkt. 34, 35). Judge Bason's posted procedures permit parties to file this type of motion on shortened time without prior approval, but Movant failed to comply with the instructions in the posted procedures, which requires amendment of the local notice form to state that (i) the motion is being brought on shortened notice and, (ii) oppositions must be filed at least five calendar days before the self-calendered hearing date.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it
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has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Herrera Pro Se
Joint Debtor(s):
Anais Cabrera Pro Se
Movant(s):
Dylan Cooper Pautsch Myers LLC Represented By
Laurie Howell
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Docket 10
Grant as provided below, subject to any opposition at the hearing, for the reasons set forth below. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court presumes that counsel for the movant will not seek to charge the debtor or the estate any fees for appearing at this hearing because such appearance would have been unnecessary if the correct procedures had been followed (if counsel intends to do otherwise, that must be raised and argued at the hearing).
After the hearing date, if this Court is not persuaded to depart from this tentative ruling, this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to
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selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eric Kitay Represented By
William J Smyth
Movant(s):
Eric Kitay Represented By
William J Smyth William J Smyth William J Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 12
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Diane Lisa Miller Represented By Donald E Iwuchuku
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 83
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 4/10/18 hearing on the motion, this court continued the hearing at the debtor's request to provide additional time to negotiate the terms of an adequate protection agreement. This Court directed the debtor's counsel to provide notice of the continued hearing but the docket does not reflect such notice - why not?
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Grant as provided below. Appearances are not required.
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Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief applicable in future bankruptcy cases. Deny the request for relief under 11 U.S.C. 362(d)(4) for lack of cause shown.
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ladonna L Flores Represented By
Anthony Obehi Egbase Crystle J Lindsey Adaure C Egu
Edith Walters
W. Sloan Youkstetter
Movant(s):
Nationstar Mortgage, LLC. Represented By Bill Taylor
10:00 AM
Trustee(s):
Michael Daniels Dane W Exnowski
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 105
Tentative Ruling for 5/1/18 (same as for 4/10/18, 2/27/18, 1/9/18): Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling. This matter has been continued a number of times to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required. There is no tentative ruling. At the hearing on 10/3/17, this court continued the matter to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
Tentative Ruling for 10/3/17:
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Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 107).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Partrick I. Ikhifa Represented By
Anthony Obehi Egbase Onyinye N Anyama Edith Walters
W. Sloan Youkstetter
Movant(s):
Wilmington Savings Fund Society, Represented By
Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
US BANK TRUST, NA
vs DEBTOR
Docket 42
Tentative Ruling for 5/1/18 (same as for 4/10/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the last hearing on the motion, this court continued the hearing at the request of the parties to provide them additional time to negotiate the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hortencia A. Maltez Represented By William G Cort
Movant(s):
US Bank Trust N.A., as trustee of Represented By
Michelle R Ghidotti James F Lewin Renee M Parker
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA.
vs DEBTOR
Docket 37
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 39).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cathy Renae Johnson Represented By
Rabin J Pournazarian
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PACIFIC UNION FINANCIAL, LLC
vs DEBTOR
Docket 33
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 2/27/18 this Court was persuaded to continue this matter for 60 days, instead of taking it off calendar, to allow additional time for the debtor to obtain a loan modification. There is no tentative ruling but the parties should be prepared to address the status of approval of any loan modification and whether this matter should go off calendar.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Take this motion for relief from the automatic stay off calendar, in view of this court's order (dkt. 39, para. 14) granting the debtor's motion to commence loan modification program, without prejudice to the movant self-calendaring this motion again if the loan modification program is terminated without a consensual loan modification. Appearances are not required.
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Edison Dawson Represented By Michael E Clark Barry E Borowitz
Movant(s):
Pacific Union Financial, LLC Represented By Brandye N Foreman
10:00 AM
Trustee(s):
Darlene C Vigil
Kathy A Dockery (TR) Pro Se
10:00 AM
fr. 4/10/18
VW CREDIT, INC.
vs DEBTOR
Docket 74
Debtor(s):
Ananda Chandrasekera Alahakoon Represented By
Jeffrey J Hagen
Joint Debtor(s):
Chitra Ranjini Niyarepola Represented By Jeffrey J Hagen
Movant(s):
VW Credit, Inc., as servicer for VW Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
fr. 4/10/18
VW CREDIT, INC
vs DEBTOR
Docket 72
Debtor(s):
Ananda Chandrasekera Alahakoon Represented By
Jeffrey J Hagen
Joint Debtor(s):
Chitra Ranjini Niyarepola Represented By Jeffrey J Hagen
Movant(s):
VW Credit, Inc., as servicer for VW Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 32
Debtor(s):
Jon Paul Jimenez Represented By Michael E Clark Barry E Borowitz
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FEDERAL NATIONAL MORTGAGE ASSOC
vs DEBTOR
Docket 31
Debtor(s):
Natasha Ellis Represented By
Andy C Warshaw
Movant(s):
Federal National Mortgage Represented By Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
VW CREDIT, INC.
vs DEBTOR
Docket 21
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the last hearing, this court continued the matter at the parties' request to allow time to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
10:00 AM
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
William Charles Arkwright Represented By Michael E Clark
Movant(s):
VW Credit, Inc., servicing agent for Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
2nd CHANCE MORTGAGES INC.
vs DEBTOR
Docket 22
Debtor(s):
Jose Luis Macias Represented By Luis G Torres
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 190
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). At the 4/17/18 hearing, this court continued the matter for the parties to finalize the terms of an adequate protection agreement and directed the movant to give notice of the continuance by 4/19/18, which the movant timely did. This court had previously continued the matter from 3/20/18 for this same purpose (see dkt. 201, 203, 205). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This court continued the matter from
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3/20/18 at the request of the parties for more time to reach an adequate protection agreement (see dkt. 201, 203, 205). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This matter has been continued twice from the hearing on 2/13/18. See Stipulation to Continue (dkt. 193, 197) and orders thereon (dkt. 195, 199). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's late-filed response, dkt. 192).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required. This court continued the hearing on this matter pursuant to the parties' stipulation (dkt. 193) and order thereon (dkt. 195). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether
10:00 AM
they will agree to the terms of an adequate protection order (see the debtor's late-filed response, dkt. 192).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodney Edward Donkin Jr Represented By Louis J Esbin
Movant(s):
Wells Fargo Bank, N.A. as Trustee Represented By
Robert P Zahradka Tina R Lyons
Gagan G Vaideeswaran Joseph C Delmotte
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
11 U.S.C. 362(j) or That No Stay is in Effect under 11 U.S.C. 362(c)(4)(A)(ii)
fr. 4/17/18
Docket 33
Tentative Ruling for 5/1/18:
Deny for the reasons set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons for denial: This Court's tentative ruling for 4/17/18 (below) directed movant to serve the debtor with the motion and file an amended proof of service by 4/18/18. Although movant filed a notice of continuance (dkt. 35) on 4/17/18, the proof of service does not reflect service on the debtor and there is nothing in the record to show that movant served the underlying motion on the debtor. The tentative ruling is to deny the motion, without prejudice, for failure to comply with this Court's order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 4/17/18:
Continue to 5/1/18 at 10:00 a.m. to address the following issues. Appearances are not required on 4/17/18.
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Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Reasons:
(1) Service. The Motion was not served on the debtor pursuant to LBR 4001- 1(c)(1)(C)(i) and 4001-1(e)(2) - service on the debtor's attorney is not sufficient by itself. Movant is directed to file an amended proof of service reflecting service on the debtor by 4/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Manuel Palilio Domingo Represented By Brad Weil
Movant(s):
Courtesy NEF Represented By Cheryl S Chang
Trustee(s):
Kathy A Dockery (TR) Pro Se
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INGRID ALIET-GASS
vs DEBTOR
Docket 130
- NONE LISTED -
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Movant(s):
Ingrid Aliet-Gass Pro Se
11:00 AM
Docket 34
Deny for the reasons stated in the opposition (dkt. 36), except that this Court need not reach the attached evidentiary objections to specific portions of the motion. Appearances are not required.
Proposed order: The Fykes are directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Armen Janian Represented By Leon Nazaretian
Movant(s):
Armen Janian Represented By Leon Nazaretian
Trustee(s):
David M Goodrich (TR) Pro Se
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Adv#: 2:18-01050 Pachulski v. Layfield V, LLC, a Delaware limited liability comp
Docket 1
- NONE LISTED -
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Layfield V, LLC, a Delaware limited Pro Se Philip Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski Represented By Steven J Kahn
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Adv#: 2:17-01174 Stardust Vacation Club and Americana Vacation Club v. MacMillan
fr. 5/2/17, 06/06/17, 8/22/17, 11/14/17, 01/30/18
Docket 1
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This court has reviewed the parties' joint status report (dkt. 27).
Mediation. The tentative ruling is to order mandatory mediation (again), with a deadline of 5/15/18 for the parties to lodge proposed mediation order (s).
Deadlines: This adversary proceeding has been pending since 2/24/17. Due to the parties' prior delays and an anticipated settlement the normal deadlines for completion of discovery and other matters have not been applied. The tentative ruling is to set the following deadlines, to run concurrent with the parties' mediation. The parties are cautioned that once the following deadlines have been established this Court is unlikely to be persuaded to amend them.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 9/3/18. Expert(s) - deadline for reports: 9/17/18.
Expert(s) - discovery cutoff (if different from above): 9/24/18. Dispositive motions to be heard no later than: 11/6/18.
Joint Status Report: 6/12/18.
Continued status conference: 6/26/18 at 11:00 a.m.
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Lodge Joint Proposed Pre-Trial Order: 10/11/17. Pretrial conference: 11/27/18 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: 12/6/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 12/10/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the results of their mediation. In future, the parties are cautioned that they are required under the Local Bankruptcy Rules to file a status report.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Continue to 11/14/17 at 11:00 a.m. in view of the parties' mediation scheduled for 10/27/17 (adv. dkt. 18). Appearances are not required on
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8/22/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 6/6/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 10) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 2/24/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
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Discovery cutoff (for completion of discovery): 7/21/17. Expert(s) - deadline for reports: 8/4/17.
Expert(s) - discovery cutoff (if different from above): 8/18/17. Dispositive motions to be heard no later than: 9/29/17.
Joint Status Report: 8/29/17.
Continued status conference: 9/12/17 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/11/17.
Pretrial conference: 10/17/17 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: 10/20/17 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 10/25/17 at 9:00 a.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Stardust Vacation Club and Represented By Bruce Grego
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Docket 1
Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Court has reviewed the debtors' status report (dkt. 85), the Amended Plan (dkt. 80), Amended Disclosure Statement (dkt. 81), and other relevant pleadings.
Exhibit F (Discl. Stmnt., dkt. 81, at PDF p.12). This exhibit continues to contain the same errors identified in this court's tentative ruling for 10/3/17: line "1" lists general unsecured claims of $64,716, the source for which is listed as dkt.10, plus another $7,970.39 in line "8" from a "Continuation Sheet"; but dkt.10 is not a listing of creditors (it is a notice of commencement of this case and the meeting of creditors), the only bankruptcy Schedule E/F that appears on the docket (dkt.1) lists general unsecured claims of $64,672.60, and there is no "Continuation Sheet" attached.
Exhibit C (Discl. Stmnt., dkt. 81, at PDF p.7). This document references "Exhibit I" - apparently meaning bankruptcy Schedules I & J (dkt.1)
- as the source of the gross income and expenses used to calculate the debtor's cash flow. But there are several problems with this approach.
First, when using bankruptcy Schedules I and J there is a danger of double-counting: bankruptcy Schedule J includes debt payments on lines 17 and 20 - namely $474.10/mo for vehicle1, $500/mo for vehicle2, $900/mo for a home equity loan on rental property, and $1,219.99/mo for the mortgage on rental property - but the Plan includes payments of those same debts:
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Classes 2D and 2E are payments of vehicle loans, and Classes 2A and 2B are payments of loans secured by real property (in other words, the Plan pays the same debts again).
Second, when using bankruptcy Schedules I&J a plan proponent is supposed to use Exhibit C-1 to the Disclosure Statement. That spreadsheet includes lines to make adjustments to eliminate the double-counting problem.
Third, bankruptcy Schedule I (dkt.1), line 8a, includes an instruction to "Attach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." The debtors have failed to provide any such statements, and as a result there is inadequate disclosure of the cash flow in support of the Disclosure Statement. It is true that the debtors have attached such a statement as part of their budget motion in the form of a spreadsheet (dkt. 20, at PDF p.8), but that spreadsheet includes debt payment (so, again, it double- counts payments on such debt) and in any event no such spreadsheet is attached to the Disclosure Statement (or incorporated by reference).
Fourth, the debtor's status report (dkt. 85) suggests that the finances described in bankruptcy Schedules I & J (dkt. 1) and the budget motion (dkt. 20) are all out of date. Apparently the debtors have moved from their prior residence into their former rental property and they are renting out their former residence, and they no longer have the costs of a storage locker. The debtors should have filed the local form statement of postpetition income and expenses (with statements showing gross income, expenses, and net income from their current rental property as an exhibit). Then they should attach a copy of that form and exhibit to their Disclosure Statement so as to provide accurate, current information about their cash flow.
(d) Effective date. The proposed effective date of 6/1/18 does not leave adequate time (i) to file a further amended plan and further amended disclosure statement; (ii) to have a further status conference to review those documents; and (iii) to disseminate the amended plan and amended disclosure statement for voting and hold a confirmation hearing. The debtors are directed to modify the effective date to 9/1/18.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
AmPlan/AmDisclosure Statement* (dkt. 80, 81): The tentative ruling is to set a deadline of 5/8/18 to file (NOT SERVE - except on
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the U.S. Trustee) a further amended plan and further amended disclosure statement to address the foregoing issues.
Continued status conference: 5/22/18 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Amended Plan, Amended Disclosure Statement: Counsel for the debtors should be prepared to address the status of the debtors' efforts to reach agreements with their secured creditors.
Monthly Operating Reports ("MORs"). Counsel for the debtor must explain at the hearing the enties reflecting transfers of $1,000 and $8,300 to "cash" "due to bk dismissal" listed in MOR#9 (dkt.76 at PDF pp.3&6, entries for 1/23/18 & 1/17/18). Has the debtor properly accounted for use of the cash while this case was dismissed?
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
AmPlan/AmDisclosure Statement*: This court has set a hard deadline of 3/30/18 to file an amended plan and amended disclosure statement
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required. If this court is persuaded to vacate the dismissal (see calendar No. 3, 1/30/18 at 1:00 p.m.), the tentative ruling will be to continue the status conference to March 6, 2018 at 1:00 p.m. and set a hard deadline of March 30, 2018 for the debtors to file an amended plan and disclosure statement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement: At the hearing on 12/5/17, this court cautioned debtors' counsel about the possibility of dismissing this case for failure to prosecute. Although the debtors have reached an agreement with Sheffield Financial (dkt. 51, 53), it does not appear that the debtors have reached agreements with any of their other secured creditors (see dkt. 45,
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Ex.H, at PDF p.14, Endnotes 2B-2D), despite this case having been pending for nearly eight months. As a result, counsel for the debtor should address why this court should not dismiss this case.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: If this case is not dismissed, this court will set a hard deadline for the debtors to negotiate agreements with their secured creditors regarding plan treatment.
Continued status conference: If this case is not dismissed, this court will set a date for a continued status conference.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement: The tentative ruling is not to impose at this time a deadline for filing amended documents, but to caution debtor's counsel that if this case is not adequately prosecuted then it may be dismissed.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: This court anticipates
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that at the continued status conference (set forth below) this court will set a new, hard deadline shortly thereafter for filing revised drafts of the plan and disclosure statement.
Continued status conference: 1/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement (dkt. 44, 45). There is a blank page in the plan that should be deleted (dkt. 44 at PDF p.11).
Exhibit F (dkt. 45 at PDF p.12) appears to contain some errors: line "1" lists general unsecured claims of $64,716, the source for which is listed as dkt.10, plus another $7,970.39 in line "8" from a "Continuation Sheet"; but dkt.10 is not a listing of creditors (it is a notice of commencement of this case and the meeting of creditors), the only bankruptcy Schedule E/F that appears on the docket (dkt.1) lists general unsecured claims of $64,672.60, and there is no "Continuation Sheet" attached.
The debtor discloses (dkt. 45, Ex.H, at PDF p.14, Endnotes 2B-2E) that agreements have yet to be reached with various secured creditors; and therefore it appears appropriate to defer any solicitation of votes. The debtor's counsel should be prepared to address how long it is expected to take before agreements are reached or unresolved disputes are ready for presentation to this court for decision.
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Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: 11/14/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions per the above tentative ruling and any matters discussed at the status conference.
Continued status conference: 12/5/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Orders. The debtors' counsel should be prepared to address why certain orders have not been lodged, namely, (i) the order on the debtors' motion to value their personal property (dkt. 27), which motion was granted on 7/11/17, and (ii) the order on the debtors' application to employ general bankruptcy counsel (dkt. 22).
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/3/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status
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conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Grant the budget motion and continue the status conference as set forth below. Appearances are not required on 6/20/17.
Current issues.
Budget motion. This court mistakenly ruled at the status conference on 6/13/17 that the budget motion would be granted on a final basis, not realizing that the 6/13/17 hearing on that motion had been vacated because an amended motion had been filed and set for hearing on this 6/20/17 date. See dkt. 16, 20. Notwithstanding that error, no opposition has been filed to the budget motion, and the tentative ruling is to issue an order after this hearing granting the amended motion on a final basis (the debtor is directed to lodge a proposed order within seven days after this hearing date).
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (dkt. 23) - to be served by 8/20/17
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/22/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 6/13/17:
Appearances required by counsel for the debtor and by the debtor(s)
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themselves
but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion. The debtors' amended budget motion filed on 6/1/17 (dkt. 20) appears to have only partially cured the defects pointed out by the U.S. Trustee in its opposition (dkt. 19) to the initial budget motion (dkt. 16). First, the debtor and/or spouse apparently has income from a property or business but has failed to provide a breakdown of gross receipts, ordinary and necessary business expenses, and calculation of the resulting monthly net income. See dkt. 20 at PDF p.7 (bankruptcy schedule "I" line 8a).
Second, the budget motion includes both (a) bankruptcy schedules "I" and "J" and (b) a spreadsheet showing what appears to be largely or entirely duplicative data. Which one controls (or are both the same)?
Third, the notice of the amended motion incorrectly provides that oppositions are due 14 days prior to the hearing on the motion, although the motion was set on shortened notice pursuant to this court's posted Procedures. For this reason, this court intends to hear oppositions to the amended budget motion at the hearing on 6/13/17.
The tentative ruling is to grant the budget motion on an interim basis, based on the proposed budget spreadsheet (not bankruptcy schedules "I" and "J"), with a deadline of 6/14/17 to file a supplemental declaration providing a thorough breakdown of gross revenues, expenses and calculation of net income for each property/business, and with a continued hearing on 6/20/17 at 1:00 p.m.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/20/17 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Steve O Chong Represented By Lionel E Giron Kevin Tang
Joint Debtor(s):
Edwina Theresa Chong Represented By Lionel E Giron Kevin Tang
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Docket 31
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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fr. 4/10/18
Docket 21
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 4, on 5/1/18 at 1:00 p.m.).
Tentative Ruling for 4/10/18:
Please see the tentative ruling for the status conference (calendar no. 1, on 4/10/18 at 1:00 p.m.).
Debtor(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
Movant(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
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Docket 9
Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget Motion (dkt. 21). This Court has reviewed Debtor's Supplemental Declaration in Support of the Budget Motion (dkt. 34). Although that declaration addresses many of the concerns raised by this Court and by Strategic Acquisitions, Inc. (dkt. 23), the debtor has failed to provide historical monthly profit and loss statements from the period from 1/1/18 through 3/31/18 as required by this Court's order (dkt. 27, para. 5.a.). The parties should be prepared to address what remedy this Court should impose.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (timely served, dkt. 26, 32).
Plan/Disclosure Statement*: In view of the debtor's declaration about her current and future projected income, the tentative ruling is to vacate the prior deadline to file these documents, and set a new deadline at a future status conference, with the caveat that if the debtor fails to show sufficient diligence in obtaining employment and/or if the estate suffers any substantial losses then this Court might have to dismiss or convert this case.
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor and by the debtor herself.
Current issues. This Court has reviewed the debtor's status report (dkt. 19), the response (dkt. 23) filed by creditor Strategic Acquisitions, Inc. ("Strategic"), and the other filed documents and records in this case.
Prior failed case. The debtor's husband's prior case (no. 17-bk- 19071-NB) was a chapter 13 case that was dismissed on 10/13/17 with a 180-day bar to re-filing for failure to make plan payments or appear at the meeting of creditors (11 U.S.C. 341(a)).
Budget Motion (dkt. 21). First, as Strategic points out, the debtor's bankruptcy Schedule I, line 8a, lists $6,220/mo. of net income from "rental property and from operating a business, profession, or farm" but fails to follow the instructions to "[a]ttach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total net monthly income." In addition, as Strategic points out, the debtor may be failing to account for the payment of real property taxes and perhaps also income taxes, and therefore it is not at all clear how the debtor will be able to fund any plan of reorganization.
The tentative ruling is to set a deadline of 4/17/18 for the debtor to file declaration(s) (i) attaching the statement(s) required by the line 8a instructions, (ii) providing complete explanations of any other sources of income (e.g., how long does the debtor anticipate continuing to receive disability payments? does the debtor ancticipate returning to employment, and if so, when?), (iii) explaining whether the debtor is accounting for real estate taxes and income taxes, (iv) explaining how the debtor anticipates generating sufficient income to fund a plan of reorganization, and (v) attaching historical monthly accounts for the period of one year prepetition
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through 3/31/18.
Second, bankruptcy Schedule J (attached to the budget motion), lines 17c and 17d, list payments to Strategic of $1,750/mo. and to Ropers Majeski of $500/mo. The tentative ruling is to treat those payments as adequate protection payments on account of claims that appear to be secured claims, conditioned on return of such payments in the event that such security interests or claims are avoided or otherwise disallowed.
Third, notice of the motion and the deadline for objections is inadequate. The proof of service fails to attach a service list of creditors, and the debtor checked the box directing creditors to file any oppositions within 14 days' from the date of the proof of service (3/27/18), which would be the date of this hearing. Nevertheless, despite the lack of adequate service or notice, the tentative ruling is that on the present record it appears that it would be more prejudicial to creditors to prevent the debtors from making their proposed expenditures than to permit those expenditures, so the tentative ruling is to grant the budget motion on an interim basis, subject to any objections at a continued hearing simultaneous with the continued status conference date set forth below. This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006, Fed. R. Bankr. P.), but that date is conditioned upon the debtor serving the motion on the entire creditor matrix the day after the current hearing date.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: File by 6/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time). This Court is aware that the debtor has requested a much later deadline (dkt. 19, p. 5), but this Court is not aware of any reason why so much time is needed. The debtor should be negotiating with secured creditors and other key constituencies already.
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
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fr. 3/20/18
Docket 13
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference, calendar no. 7 at 1:00 p.m. 5/1/18.
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference, calendar no. 4 at 1:00 p.m. 3/20/18.
Debtor(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
Movant(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
1:00 PM
fr. 3/20/18
Docket 12
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference, calendar no. 7, at 1:00 p.m. on 5/1/18.
Tentative Ruling for 3/20/18:
Grant the motion (docket no. 12) on an interim basis, subject to the conditions set forth below, with a final hearing on 5/1/18 at 1:00 p.m., and deadlines of 4/3/18 for the movant to file and serve a notice of the final hearing, 4/10/18 for any opposition, and 4/17/18 for any reply. Appearances are not required on 3/20/18.
Service is inadequate. The proof of service (dkt. 12, pp. 12-13) fails to comply with the rules for service. Chase was not served via certified mail or to the attention of an officer as required by Rule 7004(b)(3) & (h) (Fed. R. Bankr. P.) (incorporated by Rule 9014(b), Fed. R. Bankr. P.).
Missing proposed form of order. The debtor failed to attach a proposed form of order pursuant to Rule 4001(b)(1)(A) (Fed. R. Bankr. P.). In future, counsel is directed to comply with this rule.
Missing mandatory form F 4001-2.STMT.FINANCE. The debtor failed to file the mandatory form F 4001-2.STMT.FINANCE. This court notes that counsel has failed to file this form in prior cases. Counsel is cautioned that failure to file this form in future cases may result in adverse consequences.
The debtor is directed to serve Chase in accordance with Rule 7003(b)(3) &
and file an amended proof of service by no later than 4/3/18. The debtor is also directed to file form F 4001-2.STMT.FINANCE by 4/3/18.
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Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form F2081- 1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide
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appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506 (c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such
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provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
Movant(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
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Docket 6
Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash Collateral Motion (dkt. 12). The tentative ruling is to grant the motion on a final basis and authorize the use of cash collateral as modified by the amended budget (dkt. 35).
Budget Motion (dkt 13). The tentative ruling is to grant the motion on a final basis as modified by the amended budget (dkt. 35) (see also dkt. 18, 21, 22, 28).
Proposed Orders. The debtor is directed to serve and lodge proposed orders on the foregoing motions via this court's "LOU" system within 7 days after the hearing date.
Status Report. This Court's prior tentative ruling set a deadline of 4/17/18 to file a brief status report. As of the preparation of this tentative ruling, the debtor has not filed a status report. Why not?
Untimely Filings.
This Court directed the debtor to serve Chase with the Budget Motion and Cash Collateral Motion by 3/22/18, but the Debtor's proof of service reflects service on 3/23/18.
This Court also directed the debtor to file a supplemental declaration in support of the Budget Motion by 3/30/18, but the Debtor did not file her declaration until 4/5/18.
The debtor's counsel is cautioned that continued failure to abide by the deadlines this court sets may result in adverse consequences.
Deadlines/dates. This case was filed on 2/16/18.
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Bar date: 5/25/18 (timely served dkt. 24, 29).
Plan/Disclosure Statement*: file by 6/12/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 7/10/18 at 1:00 p.m., brief status report due 6/26/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor and by the debtor herself.
Current issues.
Cash Collateral Motion (dkt. 12). See the separate tentative ruling for that motion (calendar no. 4, 3/20/18 at 1:00 p.m.).
Budget Motion (dkt 13).
Service is inadequate. The proof of service (dkt. 13, pp. 5-6) fails to comply with the rules for service. Chase was not served via certified mail or to the attention of an officer as required by Rule 7004(b)(3) & (h) (Fed.
R. Bankr. P.) (incorporated by Rule 9014(b), Fed. R. Bankr. P.).
Unexplained Inconsistencies between Schedule J & Proposed Budget. The debtor should be prepared to address the issues
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raised in the United States Trustee's opposition (dkt.18).
Notice of continued hearings. If the court grants the budget and cash collateral motions on an interim basis, the tentative is to set a deadline of 4/3/18 for the debtor to file and serve a notice of the final hearing on both motions, and to set the same date for the debtor to file any supplement or amendments to such motions, with deadlines of 4/10/18 for any opposition and 4/17/18 for any reply.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 6/12/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/1/18 at 1:00 p.m. (to be concurrent with the hearings on cash collateral and budget motions), brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
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Sec. 1115
fr. 4/10/18
Docket 13
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 10, 5/1/18 at 1:00 p.m.).
Tentative Ruling for 4/10/18:
Please see the tentative ruling for the status conference (calendar no. 4, 4/10/18 at 1:00 p.m.).
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
Movant(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
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fr. 4/10/18
Docket 12
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 10, 5/1/18 at 1:00 p.m.).
Tentative Ruling for 4/10/18:
Grant the motion (docket no. 12) on an interim basis, subject to the conditions set forth below, with a final hearing on 5/1/18 at 1:00 p.m., and a deadline of 4/11/18 for the movant to file and serve a notice of the final hearing.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form F2081- 1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
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Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506 (c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the
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security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
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Movant(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
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Docket 7
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 13). Counsel must address:
Income as of petition date or current? The debtor has filed an amended bankruptcy Schedule I (dkt. 30). Is that actually intended to be a decaration of postpetition income, or a correction of the debtor's income as of the petition date?
Amended budget motion? Should an amended budget motion needs to be filed and served, or is such notice unnecessary and should the budget be deemed amended, in view of what appears to be an increase of approximately $168 in the debtor's monthly income (compare dkt. 13 at PDF p.8, debtor's personal income of $2,800, with dkt. 30, line 7, debtor's personal income of $2,968)?
Cash collateral motion (dkt. 12). Grant on a final basis, on the same terms as the interim order (dkt.24).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). Note: Timely served? Per the proof of service (dkt. 26, the "POS") the debtor served the POS itself on creditors. Presumably the debtor means that she served the order on creditors (not the POS), but the debtor is directed to file an amended POS saying so, no later than 5/3/18.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a
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later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Failure to serve order. This Court's order setting this status conference (dkt. 6) directed the debtor to serve a copy of that order on all parties in interest no later than 14 days prior to this status conference. No proof of service appears on the docket. The tentative ruling is to set a deadline of 4/11/18 for the debtor to effect such service, with a caution to counsel that in future such failure may result in sanctions.
Budget motion (dkt. 13). Grant on an interim basis, with a final hearing on the same date at the continued status conference set forth below.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
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7/11/17, 8/15/17, 9/12/17, 10/3/17 , 12/5/17, 02/13/18
Docket 5
Tentative Ruling for 5/1/18:
Continue to 8/7/18 at 1:00 p.m. in view of the debtor's post-confirmation status report (dkt. 109). Brief status report due 7/24/18. Appearances are not required on 5/1/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Continue to 5/1/18 at 1:00 p.m. in view of the debtor's post-confirmation status report (dkt. 107). Brief status report due 4/17/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
n/a
Deadlines/dates. This case was filed on 11/17/16.
Bar date: 3/15/17 (timely served, dkt. 24).
Amended Plan/Disclosure Statement (dkt. 85, 86)*: Approve the disclosure statement, and confirm the plan under 11 U.S.C. 1129(b) because there is an accepting impaired class (Class 4A, see ballot summary, dkt. 100) and the plan is fair and equitable and does not discriminate unfairly within the meaning of that statute.
Post-Confirmation status conference: 2/13/18 at 1:00 p.m., brief status conference due 1/30/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eleganzarella, Inc Represented By
Anthony Obehi Egbase Crystle J Lindsey Kevin Tang
Adaure C Egu Edith Walters
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Clarissa D Cu
Amelia Puertas-Samara
W. Sloan Youkstetter
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fr. 4/17/18
Docket 78
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 14, 5/1/18 at 1:00 p.m.).
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference (calendar no. 6, 4/17/18 at 1:00 p.m.).
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
Movant(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Sheila Esmaili Sheila Esmaili Sheila Esmaili Sheila Esmaili
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Sheila Esmaili Sheila Esmaili Sheila Esmaili
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Docket 59
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 14, 5/1/18 at 1:00 p.m.).
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference (calendar no. 6, 4/17/18 at 1:00 p.m.).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 7, 3/20/18 at 1:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference (calendar no. 8, 2/13/18 at 1:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference (calendar no. 3, 1/23/18 at 1:00 p.m.).
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
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Docket 1
Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that debtor lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18.
At the continued hearing on 2/13/18, the debtor stated that he reached a settlement with Wells Fargo regarding plan treatment and would be filing a motion to allow late-filed ballot. On 3/12/18, the debtor filed that motion (dkt. 78), with a hearing scheduled for 4/17/18. Debtor's ability to confirm the Amended Plan apparently depends upon whether this court accepts Wells Fargo's late-filed ballot.
For the reasons stated below, the tentative ruling is to approve the disclosure statement on a final basis and confirm the debtor's plan.
Motion to Accept Late-Filed Ballot (dkt. 78). The tentative ruling is to grant the motion and accept Wells Fargo's late-filed ballot, in view of the debtor's timely filing of a proof of service reflecting service of the motion on American Express (dkt. 82) in accordance with this Court's 4/17/18 tentative ruling (below). With that ballot counted, the proposed Plan has been accepted by the requisite majorities for consensual confirmation (see Ballot Summary, dkt. 81).
Deadlines/dates. This case was filed on 6/7/17.
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Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: Approve the disclosure
statement on a final basis, and confirm the plan under 1129(a).
Post-Confirmation status conference: 8/7/18 at 1:00 p.m. Brief
status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Continue all matters set for today to the same date and time as the continued status conference, as set forth below. Appearances are not required on 4/17/18.
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that debtor lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18.
At the continued hearing on 2/13/18, the debtor stated that he reached a settlement with Wells Fargo regarding plan treatment and would be filing a motion to allow late-filed ballot. On 3/12/18, the debtor filed that motion (dkt. 78), with a hearing scheduled for this date. Debtor's ability to confirm the Amended Plan apparently depends upon whether this court accepts Wells Fargo's late-filed ballot.
For the reasons stated below, the tentative ruling is to continue the hearing on approval of debtor's disclosure statement and plan to the above- stated time and place, concurrent with a continued hearing on debtor's motion to accept late-filed ballot.
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Motion to Accept Late-Filed Ballot (dkt. 78)
Service. The Motion was not properly served on American
Express at the address listed in its proofs of claim (claim nos. 4-1 and 6-1) (nor is it served in an alternative manner that might satisfy Rule 7004 because it was not served to the attention of an officer or agent pursuant to Rule 7004(b)(3) (FRBP)). Since American Express cast the only ballots against debtor's plan, it is particularly important that it be given proper service.
The tentative ruling is to continue the hearing to the same date and time as the continued status conference (see below) and direct the debtor to re-serve the Motion on American Express. This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the debtor serving all papers on the day after the current hearing date and filing a proof of service. Alternatively, debtor may self-calendar a continued hearing on regular notice.
Exit strategy. At the continued hearing, if this Court does not approve the debtor's motion to accept late-filed ballot, the debtor should be prepared to address what his exit strategy from bankruptcy is and whether this case be dismissed.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Continue to 4/17/18 at 1:00 p.m. to be heard concurrently with the debtor's
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motion to allow late-filed ballot (dkt. 78). Appearances are not required on 3/20/18.
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that he lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18.
At the continued hearing on 2/13/18, the debtor stated that he reached a settlement with Wells Fargo regarding plan treatment and would be filing a motion to allow late-filed ballot. On 3/12/18, the debtor filed that motion (dkt. 78), with a hearing scheduled for 4/17/18.
Exit strategy. At the continued hearing on 4/17/18, if this Court does not approve the debtor's motion to accept late-filed ballot, the debtor should be prepared to address what his exit strategy from bankruptcy is and whether this case be dismissed.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 4/17/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see
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www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that he lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18. That deadline has passed and, as of the preparation of this tentative ruling, no such papers have been filed.
Exit strategy. What is the debtor's strategy to exit from bankruptcy? Should this case be dismissed?
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 3/20/18 at 1:00 p.m. (if this case is not dismissed). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue this status conference and the combined hearing on final approval of the disclosure statement (dkt. 60) and confirmation of the plan (dkt. 59) to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtor's failure to file the ballot summary with respect to the plan, which was due on 1/16/18 (see Order, dkt. 61) and (b) the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the
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federal government.
At the continued hearing the debtor should be prepared to testify, or make an offer of proof, as to feasibility.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Income calculation. Exhibit C, Attachment 1, line 7, for income from "operations of business" requires the debtor to "attach detailed statement." No such statement appears to be provided.
Disputed claims and other prior issues appear to be adequately addressed. The revised Exhibit F (dkt. 58) lists the 16th Street Group twice: once for the undisputed portion and once for the disputed portion - if the dollar amount of the disputed portion of the claim is sufficient then this appears to fully address this court's concerns expressed in the tentative ruling for 11/7/17. All of this court's other concerns appear to have been fully addressed as well.
Feasibility. This court anticipates that the debtor may be required to testify, or make an offer of proof, as to feasibility at the combined hearing (set forth below) on final approval of the disclosure statement and confirmation of the plan.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: 12/15/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined
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revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting
package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 2/27/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 54) and disclosure statement (dkt. 53)
Disputed claims. The plan contemplates non-payment to some disputed claims. Unless and until those claims are disallowed (or allowed), the debtor must establish a disputed claims reserve and pay into that reserve in order to confirm any plan.
General unsecured creditors. The plan includes a confusing mix of different listings of general unsecured creditors. Exhibit F starts with the total from the debtor's bankruptcy schedules and then reduces it by a dollar amount that appears to be random (there are no calculations to show how the debtor arrived at that reduction). Attached to Exhibit F is a copy of the debtor's bankruptcy schedules, but those are not manually marked up to show how the debtor arrived at the dollar amounts in Exhibit F.
Exhibit I lists not only general unsecured claims but also priority and secured claims, so it is not helpful to figure out how the debtor arrived at the
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dollar amount of reduction in Exhibit F.
Exhibit H item "(6)" lists anticipated/pending objections to claims, and provides what appear to be estimated dollar amounts, but there is no basis for such estimates and they are not tied to the reduction in total claims listed in Exhibit F.
It appears that the simpler solution would be (i) to use the "electronic option" in Exhibit F (starting at line 5) for general unsecured claims, instead of attaching the bankruptcy schedules, (ii) cut all unsecured claims from Exhibit I as redundant, and (iii) use a disputed claims reserve and/or obtain final orders disallowing or allowing claims and/or follow the proper procedures for claims estimation, if permissible (see 11 U.S.C. 502(c) and Rule 3018(a), Fed. R. Bankr. P.).
Tax claims. One tax claim has been withdrawn (dkt. 52). Is the tax claim listed in Exhibit A for "LACTTC" a different claim?
Pagination. The debtor's plan divides one-page exhibits onto two pages, which is somewhat confusing. The debtor may need to adjust the page margins to enable them to print on a single page.
Income calculation. Exhibit C, Attachment 1, lines 1 and 7, do not provide adequate disclosure of the debtor's income calculation. Line 1 is for "wages, salary, and commissions" but as an independent contractor the more appropriate line would appear to be line 7 for "operations of business," which requires the debtor to "attach detailed statement." In any event, the debtor cannot simply list net income without any disclosure as to the gross revenues, specific expenses, and calculation of that net income.
The debtor's failure to disclose sufficient information about revenues and expenses has been a recurring theme - see the tentative ruling for 7/11/17 (reproduced below), item "(1)(a)" under the "Third" issue. Given this history, this court will require the debtor to file and serve on the U.S. Trustee, no later than the deadline set forth below for filing an amended plan and disclosure statement, a detailed declaration providing documentation as to the basis for each aspect of the income and expense projections (the debtor may incorporate Monthly Operating Reports by reference, but cannot rely only on those MORs - the debtor must provide additional support for his projections).
Double-counting of expenses. Exhibit C, Attachment 1, line 17, includes an adequate protection payment of $325.50/mo. (with a reference to "RFS Order Dkt No. 45"), but it appears that these adequate protection
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payments will be replaced by the payments in Class 1A of $383.28/mo. It appears that once the added $325.50/mo. is eliminated then the cash flow might be more feasible.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file "blacklined" versions by 11/21/17 (the spreadsheets probably will need to be manually blacklined) (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/12/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/12/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Appearances required by counsel for the debtor and by the debtor himself.
Current issues.
Budget motion (dkt. 21). This motion is not on for hearing, but in connection with this Status Conference the debtor should be prepared to address the following concerns.
First, the debtor lists $1,350/mo. in income derived from unemployment benefits, in addition to his $6,150/mo. in business income derived from his self-employment as an independent marketing consultant, a job at which he claims to have been employed for the past year. Dkt. 21, p.
How can the debtor obtain unemployment benefits when he is employed? How will the budget change when those benefits cease?
Second, the debtor lists net business income but has failed to provide a breakdown of gross receipts, ordinary and necessary business expenses, and calculation of the resulting monthly net income, as required by the instructions on bankruptcy Schedule "I" line 8a. See dkt. 21 at p. 8.
Third, the debtor asserts a 50% interest in a real estate business in Miami, Buena Vista Terminal, LLC. See dkt. 1, pp. 19, 51. What is the nature of that business? Does the debtor derive any income from that business?
Finally, the debtor reports that he has just $43.43 in monthly net income to contribute to a chapter 11 plan. But the debtor has two cars and a motorcyle and over $700/mo. in automobile payments (plus "transportation" costs). Is that reasonable? See In re Concoff (case no. 2:13-bk-37328-NB, dkt. 246).
Application to employ counsel (dkt. 24). Does the U.S. Trustee have any concerns about the proposed interim payment procedures and fee sharing arrangement between Ms. Ghanooni and Ms. Esmaili?
According to the retainer letter (dkt. 24, Ex. 3, para. 4) some of the retainer was to be paid by the debtor's mother, as a gift. But the application and the Rule 2014 disclosures by proposed counsel and by the debtor assert that there is no connection with any insider, and that all funds have come
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solely from the debtor. Which version of the facts is true? If any portion of the retainer has been paid by a third party, that raises special concerns (e.g., was the third party fully informed, in writing, that counsel represents the DIP not the third party, and might actually have to sue the third party if there were any potentially avoidable transfers? are there any such transfers or other potential conflicts?). See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D.
Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 9/22/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/15/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference, dkt. 8).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
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fr. 01/23/18, 1/30/18, 3/20/18
Docket 297
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 2.1, 5/1/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 7, 3/20/18 at 2:00 p.m.).
Tentative Ruling for 1/30/18:
Please see the tentative ruling for the status conference (calendar no. 2, 1/30/18 at 2:00 p.m.).
Tentative Ruling for 1/30/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
Movant(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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Docket 327
Please see the tentative ruling for the status conference (calendar no. 2.1, 5/1/18 at 2:00 p.m.).
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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5/23/17, 7/11/17, 8/22/17, 10/03/17, 1/23/18,
1/30/18, 3/20/18
Docket 7
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues: The debtor and Mr. Britton have stipulated (dkt. 327) to continue the hearing on the motion to estimate Mr. Britton's claim to 10/30/18 at 2:00 p.m. This Court issued an order (dkt. 328) setting the matter for hearing so that Ms. West can be heard on the proposed continuance, if she wishes. The tentative ruling is to approve the stipulation, but with one additional week, to 11/6/18@2, because the date selected by the parties is not available on this Court's calendar.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: TBD
Continued status conference: 7/17/18 at 2:00 p.m.; brief Status Report due 7/9/18 at noon.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/20/18:
Appearances required.
Current issues: estimating Mr. Britton's claim
This matter has been substantially briefed and argued at prior hearings (see para. "(1)" of Revised Tentative Ruling for 1/30/18, reproduced below, and Mr. Britton's Opposition to Estimation Motion, dkt. 315, and debtor's Reply, dkt. 317, 322). This Court anticipates providing an oral tentative ruling at the start of the hearing, followed by a brief time (maximum 10 minutes each) for further argument before this Court makes a final ruling on the estimation motion.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: TBD
Continued status conference: 4/17/18; no written Status Report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
(1) Current issues: estimating Mr. Britton's claim
At the hearing on 10/3/18 this court contemplated that after the debtor filed its motion (dkt. 297) for an order estimating the claim of creditor Layne Leslie Britton then this court would set a briefing schedule. The tentative ruling is to set the briefing schedule set forth below.
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This court notes that the parties have already briefed, and this court
has preliminarily addressed, some of the underlying issues, in connection with the debtor's prior motion for an order approving a draft plan and disclosure statement. Therefore a longer briefing schedule does not appear to be necessary. See dkt. 244 (motion), dkt. 260 (opposition, especially at pp.17:11-21:13 and Winston Decl. Ex.1.B.), dkt. 263 (reply, especially at pp.9:9-12:24), transcript of 8/22/17 hearing (dkt. 272), debtor's status report (dkt. 273), and audio recording of 10/3/17 hearing.
Tentative briefing schedule:
2/13/18 deadline for Mr. Britton's opposition to estimation motion (dkt.
297)
2/20/18 deadline for reply by the debtor 2/27/18 at 2:00 p.m., hearing
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: TBD
Continued status conference: to be held concurrent with the hearing on the claim estimation motion; no written Status Report required (but if any status report is filed by any party, it should be filed at the same time as the debtor's reply so that this court will have adequate time to review it before the hearing).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/23/18:
Continue to 1/30/18 at 2:00 p.m. to be concurrent with the preliminary hearing (for scheduling purposes) on the debtor's motion (dkt. 297) to estimate Mr.
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Britton's claims. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's status report (dkt. 273), and any other matters appropriate for a status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's motion for approval of the proposed disclosure statement (dkt. 244), the Britton opposition (dkt.
260), the debtor's reply (dkt. 263), the debtor's status report (dkt. 262), and any other matters appropriate for a status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Continue as set forth below. Appearances are not required on 7/11/17.
Current issues
No sua sponte issues at this time.
Deadlines/dates. This case was filed on 12/1/15.
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Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement (dkt. 246, 245): D/S hearing scheduled for 8/22/17 at 2:00 p.m. (see dkt. 253).
Continued status conference: 8/22/17 at 2:00 p.m.; brief Status Report due 8/15/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/23/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The parties should be prepared to update this court on the status of the issues noted in the debtor's Eighth Status Report (dkt. 231), as well as whether this court should set any deadlines or procedures.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: The court will discuss setting deadlines related to the Plan/Disclosure Statement at the status conference.
Continued status conference: 6/20/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/25/17:
Continue all matters to 5/23/17 at 1:00 p.m. pursuant to the debtor's request in the Seventh Status Conference Report (dkt. 224, p.3). Appearances are not required on 4/25/17.
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/28/17:
Continue all matters to 4/25/17 at 1:00 p.m. pursuant to the debtor's request in the Sixth Status Conference Report (dkt. 212, p.3). Appearances are not required on 2/28/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 12/13/16:
Continue all matters to 2/28/17 at 2:00 p.m. pursuant to the parties' request in the status conference statement (dkt. 181, p.3). Appearances are not required on 12/13/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 12/13/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The parties should be prepared to update this court on the status of this case including their negotiations, why this court should not order mandatory mediation, which parties in interest should be included in such mediation, and any other appropriate procedures regarding payment of professionals, filing documents under seal, etc.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
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Plan/Disclosure Statement: no deadline
Continued status conference: 2/28/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted
provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Fee applications. The tentative ruling is (1) after the reductions that Browne concedes, to overrule the Britton objection to Browne's fees; (2) to sustain in part the limited objection of Ms. West by allowing 100%, but temporarily deferring any payment (either from any retainer or from other sources), on account of the fee applications, with a deadline of 12/12/16 for Ms. West to file (a) an adversary proceeding to determine the relative priorities of her rights and interests in the royalties, and/or other funds in which the debtor's estate asserts an interest, as against the debtor, its creditors, and other parties in interest, and (b) a request (motion) for adequate protection of her alleged claims or interests (pursuant to 11 U.S.C. 361 and 363(c), (e), (p), and Rule 7001(2), (7) & (9), Fed. R. Bankr. P.). In addition, this court anticipates providing a tentative ruling on the merits of Ms. West's asserted rights and interests, and addressing what documents (already filed or filed in future) do or do not have to be under seal, and establishing a mutually workable procedure for any sealed documents.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: no deadline
Continued status conference: 4/4/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/6/16:
Continue to 12/13/16 at 1:00 p.m. based on the debtor's current status report (dkt. 112). Appearances are not required on 9/6/16.
The debtor is directed to file a brief status report two weeks before the continued status conference.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/12/16:
Continue to 9/6/16 at 11:00 a.m. to address the following issues. Appearances are not required on 4/12/16.
Based on the statements made in the debtor's status report (dkt. 92), this Court continues this status conference as set forth above. The debtor shall file a brief status report two weeks before the continued status conference.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/2/16:
Continue to 2/23/16 at 2:00 p.m. unless any opposition/response to employment or recusal are filed prior to 1/30/16. Appearances are not required on 2/2/16.
Reasons: At the hearing on 1/19/16, this court stated that the status conference would be continued without further hearing if no oppositions/responses to employment or recusal were received by the deadline for such things, which is 1/29/16. As of the preparation of this
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tentative ruling (on 1/29/16) no such documents have yet been filed.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 1/19/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Key documents reviewed: Motion for relief from automatic stay (dkt. 11), the debtor's opposition (dkt. 33), and the movant's reply (dkt. 46); and the debtor's application to employ Browne George Ross LLP as special counsel under 11 U.S.C. 327(e) and supporting papers (dkt. 26-30, 44, 45).
Current issues.
Background. Claimant Britton's motion for relief from the automatic stay (dkt. 11) seeks to modify the automatic stay to liquidate the parties' claims in the underlying State Court action (Britton v. Riggs, LA Superior Ct. No. BC 496298). Just before trial was set to commence, the debtor filed this bankruptcy case, and trial has now been continued to 2/10/16. The debtor has filed an application (dkt. 26) to employ its existing attorneys in the State Court action as special counsel.
In view of the apparent urgency of these matters, this Bankruptcy Court issued an order raising a number of its initial concerns (dkt. 35), held a preliminiary hearing on 1/8/16, and directed the debtor to serve a supplemental notice addressing certain issues. In addition, when Judge Bason's law clerk learned of certain attenuated connections between him and the parties in this case, those matters were disclosed on the record (dkt. 39), and the debtor was directed to serve those disclosures on all parties in interest.
The debtor complied with these notice requirements (see dkt. 44, 43, 45) and the period for any response expires on 1/29/16 (fixed date in dkt. 39 as to this court's disclosures; and service on 1/11/16 + 14 days' notice + 3 days for service via U.S. mail = 1/29/16 as to the employment application). As of the time when this tentative ruling has been prepared (1/18/16) no
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response on either matter appears on the docket.
Relief from the automatic stay. The tentative ruling is to modify the automatic stay as follows, effective immediately upon (i) entry of an order of this court granting the employment application (so that the debtor can defend and prosecute its claims in the State Court action) and (ii) resolution of any request to be heard regarding recusal. Specifically, the automatic stay would be modified to permit litigation of the State court action insofar as liquidating claims by Mr. Britton agains the debtor and its principal, Mr. Riggs, as well as liquidating any counterclaims, including all subsidiary disputes such as whether the statute of limitations should be tolled and any alter ego issues, but not to permit enforcement of any judgment against any property in which the debtor asserts an interest absent further order of this Bankruptcy Court.
Judge Bason is not persuaded by the debtor's argument that the statute of limitations issue should be addressed by this Bankruptcy Court before any State Court litigation is permitted to continue. The principles underlying the Rooker Feldman doctrine (that this Bankruptcy Court may not act as essentially an appellate court for State Court determinations), as well as comity, a respect for the State Court's determination of these issues, conservation of judicial resources, the avoidance of forum shopping, and not permitting a party to obtain "two bites at the apple" all weigh against deciding the statute of limitations issues here. The State Court issued a detailed tentative ruling (dkt. 46-1, Ex.A, pp.23-26) regarding the statute of limitations issues, including its conclusion that those issues could not be determined as a matter of law because a reasonable trier of fact "may well determine that the delay in filing the action was due to the Defendants' fraud or other misconduct such that Defendants should be estopped from asserting the statute of limitations," and the State Court apparently adopted that tentative ruling when it denied the defendants' motion for summary judgment and declined to address the statute of limitations issues before trial. Judge Bason is not persuaded that this Bankruptcy Court can or should revisit that determination.
As to any claims that are truly alter ego claims (as distinguished from fraudulent transfer claims or other avoidance actions that belong to this bankruptcy estate), the tentative ruling is that under the Ahcom decision (623 F.3d 1248 (9th Cir. 2010)), any such claims do not belong to the bankruptcy estate and, therefore, the automatic stay would not prevent claimant Mr.
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Britton from seeking to establish and pursue any alter ego claims against Mr. Riggs. Alternatively, the tentative ruling is to modify the automatic stay (if it applied) to permit such true alter ego claims to be litigated (when and if the State Court determines that they should be) because if those issues turn out to be relevant then they will have to be litigated anyway, and the State Court would be the proper forum in which to litigate them. To the extent that the debtor seeks to stay (enjoin) any such alter ego claims against Mr. Riggs in this bankruptcy case, such an injunction would have to be the subject of a separate adversary proceeding. See, e.g., In re Excel Innovations, Inc., 502 F.3d 1086 (9th Cir. 2007).
Employment of special litigation counsel. The tentative ruling is to conditionally approve employment of special litigation counsel for the reasons stated at the preliminary hearing on 1/8/16 and in the application (dkt. 26) and debtor's supplemental disclosures (dkt. 44). The condition is that no order approving such employment should be lodged until after the period for responses to such application or to this court's disclosures has expired (on 1/29/16), and of course if any such response is filed then this court will consider such responses (at a hearing as set forth below).
The potential for alter ego claims does not appear to create any cognizable conflict, at least at this stage of the litigation. Although it could be argued that there would be a conflict because any recovery that Mr. Britton could obtain from Mr. Riggs would decrease his claim against the debtor, and therefore theoretically benefit the debtor, it seems more likely at this stage that both Mr. Riggs and the debtor have a unified interest in contesting any asserted grounds for alter ego liability (i) so as to assure that Mr. Riggs devotes his energies to the debtor's future success and ability to pay its creditors, and (ii) so as to attempt to assure that there is a level playing field among the debtor's creditors (which, arguably, there would not be if one creditor - Mr. Britton - could pursue alter ego recoveries before other creditors could seek to do the same).
Of course, counsel for the debtor (both general and special counsel) and Mr. Riggs himself will need to monitor the situation continually. If a conflict or potential conflict does develop, they will need to file appropriate disclosures and/or seek a supplemental ruling from this court regarding the terms of any continued employment of special counsel.
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Tentative hearing. If any response is filed to either the employment application or this court's disclosures, then a hearing will take place on 2/2/16 at 2:00 p.m. to address those things. If there is any such response, the debtor must notify chambers so that the matter may be added to this court's calendar for that day.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement*: file by 7/1/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 2/2/16 at 2:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/19/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/5/16:
Appearances required by counsel for the debtor and by the principal of the debtor.
Current issues.
Affiliated businesses. The debtor's status report (dkt. 20, p.8:17-
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9:3) requests that the debtor be excused from providing financial information concerning affiliates in both the status report and monthly operating reports. The tentative ruling is to grant that request.
Service of status report. This court's form status report must be served on, inter alia, all of the debtor's secured creditors and the top 20 largest general unsecured creditors. It appears that there are no secured creditors, but that unsecured creditors were not served (see dkt. 20, p. 10). The tentative ruling is to direct the debtor, no later than 1/6/16, to serve all parties in interest with a copy of the status report and this tentative ruling, and then parties in interest may, if they choose, raise any appropriate issues at future status conferences.
Plan and disclosure statement. The debtor has suggested (dkt. 20, p.4:20-23) a deadline of 4/30/16 to file initial drafts. The debtor should be prepared to address the associated procedures, including the local form plan and whether that deadline is consistent with the pending litigation with creditor Layne Leslie Britton (dkt. 11), currently set for trial in State court for 2/10/16.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement*: file by 4/30/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 1/19/16 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019 Related to the Secured Creditors Liens
Docket 122
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Inc., Hancore Brokerage Services Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting; and (2) Approving Form of Notice to Be Provided to Creditors and Parties- in-Interest in Connection with the Settlement
Docket 149
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Docket 125
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Fargo Trucking Logistic Co LLC, Express FTC, Inc., Hancore Brokerage Services Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019
fr. 02/13/18, 03/06/18
Docket 36
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference (calendar no. 4, at 2:00 p.m. on 3/6/18).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference (calendar no. 8, at 2:00 p.m. on 2/13/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush
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Lane K Bogard
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Docket 1
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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fr. 02/22/18, 03/20/18, 04/05/18
Docket 21
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (5/1/18 at 2:00 p.m., calendar no. 8).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (3/20/18 at 2:00 p.m., calendar no. 13).
Tentative Ruling for 2/22/18:
Please see the tentative ruling for the status conference (2/22/18 at 2:00 p.m., calendar no. 9).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
B&B Liquidating, LLC Represented By Brian L Davidoff Brian L Davidoff
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Docket 19
Tentative Ruling for 5/1/18:
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
Current issues.
Background. At a post-confirmation status conference on 4/17/18 for B&B Bachrach (2:17-bk-15292-NB), debtor's counsel discussed the status of that case as well as the B&B Liquidating case. At counsel's request, this Court set a tentative bar date of 6/29/18, but advised counsel that this Court would hold off on issuing the bar date order (and may push the bar date back) pending resolution of the claims/noticing agent issues raised sua sponte by this Court.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to grant the motion on a final basis, as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), the amended budget (dkt. 65), and the second amended stipulation (dkt. 141). The debtor is directed to serve and lodge a proposed order via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Tentatively set as 6/29/18. DO NOT serve any notice at this time (this Court will prepare an order after the claims/noticing issues are resolved)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: continue to the date set forth at the start of this tentative ruling, brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances are not required.
Current issues. This Court has reviewed the debtor's status report (dkt. 78) and the other filed documents and records in this case.
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an a final basis.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on a final basis.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on a final basis.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to grant the motion on a final basis.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to authorize consensual use of cash collateral as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), and the amended budget (dkt. 65).
Proposed Orders. The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 7/31/18 DO NOT serve any notice at this time (this Court will prepare an order after the status conference)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: 5/29/18 at 2:00 p.m., brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/22/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear (and pursuant to LBR 9075-1, any response may be presented orally).
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. As of the time when this tentative ruling has been prepared, there is no proof of service of the debtor's motions. The following tentative rulings are subject to (i) adequate proof of service and (ii) any oppositions presented at or prior to the hearing. In addition, rather than stating at length this Court's reasoning, the following tentative rulings adopt, to the extent relevant, the reasoning of this Court regarding similar motions in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46-47).
Notice/Service. Pursuant to LBR 9075-1(a)(2)(B), this Court has already orally and conditionally granted the debtor's request to shorten time on the motions identified below, subject to the right of any party in interest to object at or before the hearing to the adequacy of notice. With those limitations, the tentative ruling is to find notice adequate and grant the debtor's requests in its motions (e.g., dkt. 5, p.3:3-5) to excuse any requirement for telephonic notice provided that overnight delivery or other permissible expedited service (e.g., personal delivery, or email as permitted by applicable rules) has been delivered no later than 24 hours prior to this hearing to all persons with a pecuniary interest that could be adversely affected by the relief requested in each motion.
Immediate relief. With respect to any immediate relief described below, the tentative ruling is that the debtor has shown sufficient cause for such immediate relief under Rule 6003 (Fed. R. Bankr. P.), to the extent
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applicable, and the other rules and procedures governing relief on an emergency or expedited basis.
Limit Notice Motion (dkt. 3). The tentative ruling is to grant this motion, subject to the following adjustments. First, the Limited Service List must be augmented to include (i) junior lienholder Emerald Capital Funding, LLC ("Emerald") and (ii) the debtor's own bankruptcy counsel (because the motion apparently contemplates that all parties in interest - not just the debtor
- will be authorized to use the Limited Service List). Second, this Court contemplates limitations that parallel this Court's modifications to the parallel order in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 53).
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on the following conditions on an interim basis, with a final hearing at the same time as the continued status conference set forth below. No later than 2/23/18 the debtor must file a declaration of its CFO or other appropriate person certifying that, first, the debtor has taken measures to assure that prepetition debts are not paid out of its existing accounts (e.g., stopping payment on prepetition checks, except to the extent authorized by this court), and second, the debtor is maintaining sufficiently detailed books and records that, if it becomes necessary to analyze the debtor's finances as of the petition date, such analysis will not be impaired by the non-closing of the debtor's prepetition accounts.
Lease Rejection Motion (dkt. 7). The tentative ruling is to grant the motion on a final basis.
Employee Wages Motion (dkt. 8). The tentative ruling is to grant this motion immediately and on a final basis as to the employees, and to grant it as to the retention of Modern HR, Inc. ("HR") either immediately or at a continued hearing if the debtor can provide an offer of proof or evidence that HR's rates are within normal market rates for comparable services.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to approve the retention of Great American Group LLC and Tiger Capital Group LLC (collectively, "Liquidation Consultant") subject to the filing, no later than
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2/23/18, of a satisfactory statement of Liquidation Consultant's distinterestedness on Local Form F 2014-1.STMT.DISINTEREST.PROF. In addition, the tentative ruling is to authorize the proposed sales of the debtor's inventory and furniture, fixtures and equipment ("FF&E"), free and clear of any liens, claims, encumbrances or other interests of all persons/entities who have been served with the motion, with all such interests to attach to proceeds of such sales, under 11 U.S.C. 363(b) and (f)(1), (2) and (5), for the reasons stated in the motion papers. In addition, the tentative ruling with respect to compliance with nonbankruptcy liquidation laws, restrictions in leases, and abandonment of property is to track the limitations in this Court's interim order on the parallel motion in the Bachrach case (no. 2:17-bk-15292- NB, dkt. 71). In addition, the tentative ruling is to grant all such relief on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Collateral/DIP Financing (dkt. 21, 22). The parties should be prepared to address the following issues. (i) Is there any evidence that the debtor is "unable" to obtain credit by granting a "senior or equal lien" to the lien of Siena Lending Group, LLC ("Siena"), within the meaning of 11 U.S.C. 364(d)(1)(A)? (ii) Why would it be appropriate for this Court to approve a roll- up, cross-collateralization, and other provisions that generally are disapproved (see dkt. 22)? (iii) Why should this Court grant broader relief in this case than it did in approving a similar motion in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46, Ex.A, pp.5-9, and dkt. 50)? The tentative ruling is to authorize either consensual or non-consensual use of cash collateral and, if the terms can be modified sufficiently to be acceptable, the proposed DIP financing, on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Notice of continued hearings. The tentative ruling is to set a deadline of 2/27/18 for the debtor to file and serve a notice of the final hearing on all motions that are only granted on an interim basis, and to set the same deadline for the debtor to file any supplements or amendments to such motions, with deadlines of 3/6/18 for any opposition and 3/13/18 for any reply.
Proposed Orders. This court intends to file these tentative rulings on the docket (with the caption, "Memorialization Of Tentative rulings" or the like). Thereafter, if appropriate, all orders can grant or deny relief "for the reasons stated in the Memorialization Of Tentative Rulings (dkt. ), as modified or supplemented on the record at the hearing" (or similar language).
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The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
In view of the shortened time on the foregoing motions, parties in interest may appear and dispute the foregoing tentative rulings without prior notice to the debtor or the court (contrary to the usual requirements for "tentative rulings" under Judge Bason's Procedures, posted at www.cacb.uscourts.gov).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: March 20, 2018 at 2:00 p.m., status report due 3/6/18. (see order, dkt. 18).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
1/23/18, 02/13/18
Docket 1
Tentative Ruling for 5/1/18:
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required.
Current Issues.
B&B Liquidating, LLC (2:18-bk-11744-NB). On 2/16/18 B&B Liquidating LLC ("BBL") filed a chapter 11 petition for relief before this court. In its "first-day" motions, BBL details the troubles B&B Bachrach ("BBB") encountered post-confirmation, which resulted in the need to liquidate. See e.g., BBL Liquidating Motion, dkt. 17.
BBB should be prepared to address the debtor's progress in liquidating the estate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
2:00 PM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Continue to 4/17/18 at 2:00 p.m. in view of the debtor's post-confirmation status report (dkt. 313). Brief status report due 4/3/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue to 2/13/18 at 2:00 p.m., in view of (a) the debtor's status report (dkt. 313) and (b) the inability of the Office of the United States Trustee to appear on 1/23/18 in view of the shutdown of much of the federal government. Note: Prior to 2/13/18 this court anticipates posting a tentative ruling for a further continuance to 4/17/18 at 2:00 p.m., unless a party in interest files a status report no later than 2/6/18 requesting to be heard on 2/13/18. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges,"
2:00 PM
"Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Continue to 11/7/17 at 2:00 p.m. to be heard concurrent with the fee applications. Appearances are not required on 10/17/17.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/12/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any outstanding disputes with landlords, or other issues that are appropriate for disposition at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Bachrach, LLC Represented By Brian L Davidoff
2:00 PM
Adv#: 2:17-01503 Wellgen Standard LLC v. Maximum Legal (California), LLP et al
and (2) Turnover of Property of the Estate Pursuant to 11 U.S.C. § 542 fr. 12/19/17, 03/06/18, 3/20/18
Docket 1
Tentative Ruling for 5/1/18:
Appearances required.
Motion to Dismiss (dkt. 24). At the hearing on 3/20/18, this Court delivered its oral tentative ruling to deny the motion but, due to the Court's heavy calendar that day, could not afford the parties an opportunity to present oral arguments in response. This Court lifted the stay of discovery and continued the matter to this date to allow the parties an opportunity to attempt a consensual resolution, or present arguments for or against the tentative ruling.
Deadlines. If this Court sticks with its tentative ruling not to dismiss the complaint, the parties should be prepared to discuss relevant discovery dates and other deadlines.
This adversary proceeding has been pending since 10/17/17. Discovery cutoff (for completion of discovery): TBD
Expert(s) - deadline for reports: TBD
Expert(s) - discovery cutoff (if different from above): TBD Dispositive motions to be heard no later than: TBD
Joint Status Report: 6/12/18
Continued status conference: 6/26/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial
2:00 PM
Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required.
Motion to Dismiss. At the hearing on 3/6/18, this court continued the matter for the parties to review relevant authority on the "unfinished business doctrine" and consider the implications of that authority on this proceeding. This Court has reviewed the parties' status reports (dkt. 39, 41), which effectively are briefs, and the parties are directed to address (a) whether further briefing or discovery is needed, either as to the Teitelbaum Case or any other matter, (b) whether the range of possible outcomes could include any in which the underlying clients (or any other parties) could be prejudiced (e.g., if any party presently before this Court is denied a recovery in this proceeding, would that party have any ability to seek recovery from the underlying client on a different theory?) and, if so, whether such persons need to be joined in this proceeding, and (c) whether to bifurcate the Teitelbaum Case from other matters and render a decision as to the former after oral argument and/or set deadlines for discovery or other procedures (see, e.g., the list of deadlines set forth in paragraph "(3)" of this Court's tentative ruling for 12/19/17, reproduced below).
Continued hearing/status conference: 5/29/18 at 1:00 p.m. Brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
2:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required. This Court has reviewed the parties' status reports (adv. dkt. 28, 29) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. The issues raised in paragraph "(1)" of this Court's tentative ruling for 12/19/17 (reproduced below) appear to have been addressed (see adv. dkt. 28, 29) or waived/forfeited by parties who have not expressly addressed them.
Mediation. The parties are directed to report on the status of the 2/27/18 mediation. If the mediation was not successful, the parties should be prepared to argue the merits of the motion to dismiss filed by Advocate Capital, Inc. (adv. dkt. 24, the "MTD") and related papers (e.g., adv. dkt. 30, 34). To the extent that the foregoing does not resolve the parties' litigation, this Court anticipates setting deadlines for discovery and possibly other matters (see paragraph "(3)" of this Court's tentative ruling for 12/19/17, reproduced below).
Continued status conference: 5/29/18 at 1:00 p.m. Brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Appearances required. The court has reviewed the parties' joint status report
2:00 PM
(dkt. 9) and the other filed documents and records in this adversary proceeding. The tentative ruling is to excuse the parties from any Rule 26 compliance at this time (Fed. R. Civ. P. 26, incoroprated by Fed. R. Bankr. P. 7026), as requested by certain of the parties. In addition, the tentative ruling is as follows (the parties need not repeat their responses in the status report unless there is some change to those responses).
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
The tentative ruling is to set a deadline of 1/5/18 for the parties to agree on a mediator whose schedule is consistent with the needs of this matter and lodge mediation order(s) (if the parties are unable to agree on a single order they may lodge competing orders and Judge Bason will decide among them or issue his own, although it should be possible for the parties to agree on a mediator).
Deadlines: This adversary proceeding has been pending since 10/17/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a
2:00 PM
proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/14/18 Expert(s) - deadline for reports: 5/18/18
Expert(s) - discovery cutoff (if different from above): 5/25/18 Dispositive motions to be heard no later than: 7/10/18
Joint Status Report: 3/27/18
Continued status conference: 4/10/18 at 2:00 p.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
2:00 PM
Richard Pachulski Represented By James KT Hunter
Plaintiff(s):
Wellgen Standard LLC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Adv#: 2:17-01503 Wellgen Standard LLC v. Maximum Legal (California), LLP et al
fr. 03/06/18, 3/20/18
Docket 24
Tentative Ruling for 5/1/18:
See the tentative ruling for the Status Conference in this adversary proceeding (calendar no. 10 for 5/1/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
See the tentative ruling for the Status Conference in this adversary proceeding (calendar no. 5.1 for 3/20/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
See the tentative ruling for the Status Conference in this adversary proceeding (calendar no. 2 for 3/6/18 at 2:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
2:00 PM
Richard Pachulski Represented By James KT Hunter
Movant(s):
Advocate Capital, Inc. Pro Se
Advocate Capital, Inc. Represented By Jeffrey I Golden
Advocate Capital, Inc. Pro Se
Plaintiff(s):
Wellgen Standard LLC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Adv#: 2:18-01050 Pachulski v. Layfield V, LLC, a Delaware limited liability comp
Docket 1
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's unilateral status report (dkt. 11). Appearances are not required on 5/1/18.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines: This adversary proceeding has been pending since 2/22/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A Status Report: 6/12/18.
Continued status conference: 6/26/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
2:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Layfield V, LLC, a Delaware limited Pro Se Philip Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski Represented By Steven J Kahn
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
fr. 4/17/18
Docket 253
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Joseph Martin Barrett Represented By Damion Robinson
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
fr. 3/20/18, 4/10/18, 4/17/18
Docket 239
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/1/18 at 2:00 p.m.).
Tentative Ruling for 4/17/18:
Chambers has been informed that this matter has been resolved consensually. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 4/17/18 at 2:00 p.m. to permit the parties to engage in settlement discussions. Appearances are not required on 4/10/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Re: Trustees Motion For Order Approving Surcharge Of Secured Creditors Collateral
Docket 289
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/1/18 at 2:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Docket 31
Tentative Ruling for 5/1/18:
Appearances required.
Current issues. This Court has reviewed the Chapter 11 Trustee's status report (dkt. 283).
Surcharge motion under 11 U.S.C. 506(c) (dkt. 239). The Trustee and Wellgen have entered into a Stipulation resolving the motion (dkt. 281). This Court has issued an order setting this matter for hearing. The parties are directed to address the issues raised in that order. In addition, the parties are directed to address what will happen if there are any proceeds in excess of both (1) the maximum amount distributed to Wellgen (para. 9 of the Stipulation) and (2) the maximum amount distributed to the Trustee and his counsel (para. 10 of the Stipulation).
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 133, 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 7/10/18 at 1:00 p.m., brief status report due 6/26/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
2:00 PM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 229). Appearances are not required on 2/27/18.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
2:00 PM
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 153). Appearances are not required on 12/12/17.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 2/27/18 at 1:00 p.m., brief status report due 2/13/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
2:00 PM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Adopt the trustee's recommendation regarding re-issuance of a notice of case commencement, with a new bar date of December 31, 2017. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/19/17:
Appearances required.
Current issues.
Order for relief. This case was commenced as an involuntary chapter 7, and thereafter the debtor filed a motion (dkt. 19) to convert this case to chapter 11, which this court treated at a hearing on 8/8/17 as a consent to an order for relief conditioned on such converstion. This court orally ordered relief and granted the motion to convert to chapter 11, and although the latter order was reduced to writing (dkt. 25) the former was not. The tentative ruling is to direct the Chapter 11 Trustee to prepare and lodge a written order, memorializing that the oral order for relief was effective on 8/8/17. The parties should be prepared to address whether that written order should modify any deadlines that otherwise would apply (see next paragraph), notwithstanding that all parties in interest appear to have been present in person or on the telephone at that 8/8/17 hearing.
Lack of information. The Chapter 11 Trustee's status report (dkt. 79) indicates that the debtor has yet to provide information on numerous issues, notwithstanding Rule 1007(a)(2), (b) and (c). The docket does not reflect that the debtor has filed bankruptcy schedules, a statement of financial affairs, or other information, or filed any motion for extention of time. What is the current status, and what additional action may be appropriate?
2:00 PM
Clients. This court has approved a client transfer protocol (dkt. 83). What is the status of those transfers?
Reconversion? The debtor's status report (dkt. 80, at PDF p.3:4- 21) suggests that, although the debtor and other parties in interest stipulated (dkt. 38) to the appointment of a chapter 11 trustee, and this court approved that stipulation (dkt. 42), nevertheless this case is essentially being operated as a chapter 7 liquidation and should be converted back to chapter 7. What are the positions of parties in interest on that issue?
Joint administration? Should this case be jointly administered (not procedurally consolidated) with the case of Maximum Legal (California), LLP (Case No. 2:17-bk-18433-NB)?
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: TBD after bankruptcy schedules are filed.
Plan/Disclosure Statement*: Do not file or serve until further order of this court.
Continued status conference: 10/17/17 at 1:00 p.m., brief status report due 10/10/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Docket 5
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. There is no tentative ruling at the present time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/22/18 at 2:00 p.m. (per 4/10/18 ruling)
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
2:00 PM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 76) and the pending motions for relief from the automatic stay and related matters. There is no tentative ruling at the present time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/22/18 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves. This court has reviewed the debtor's chapter 11 status report
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(dkt. 31) and all other filings in this case.
Current issues
Proposed bankruptcy counsel (dkt. 9, 30, 34, 45, 46). The debtor has now disclosed that the source of the prepetition retainer is Olympic Holdings, LLC ("Olympic"), the managing member of which is also the debtor's managing member, namely Mr. Mark Slotkin. The debtor has also clarified that although Olympic proposes to pay counsel's monthly bills as they come due (to be held in proposed counsel's client trust account until allowed), Olympic reserves the right to request reimbursement of prepetition payments as a general unsecured claim and postpetition payments as an administrative claim - would such postpetition request be on "substantial contribution" grounds? or on other grounds, such as an administrative priority loan (under 11 U.S.C. 364? without interest? with interest?)?
The foregoing facts and questions raise a host of ethical concerns. Any counsel who is paid by a third party (the "Funder") may be subject to conflicts of interest, especially if there are potential avoidance actions, reimbursement or contribution or indemnity claims, or other claims that could be investigated or brought against the Funder. At the hearing, proposed counsel must address the following.
Connections. What are all of the connections (as that term is used in FRBP 2014) among the Funder, the debtor, Mr. Slotkin, and proposed counsel? Are there any conflicts of interest, or potential conflicts? In the past, Judge Bason has followed authority holding that conflicts cannot be waived by a debtor in possession because it is representing the interests of creditors and has no authority to waive conflicts on creditors' behalf. In addition, to help in identifying all connections, Judge Bason's posted procedures require the use of Local Form 2014-1 (see those procedures at www.cacb.uscourts.gov for instructions how to fill out that form).
Terms. What are the precise understandings regarding the
funds?
Informed consent of Funder. Mr. Slotkin declares (dkt. 45,
para.5) that both he and Olympic understand that proposed counsel "does not represent us, and only represents the Debtor"? Have the members of Olympic (whoever they might be) been advised of this as well? Have all such persons been advised not only of representation issues but also attorney- client privilege issues, including what can happen if a trustee were to be
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appointed? Have all such persons been advised of duties of loyalty, whom counsel will continue to represent (if anyone) if a conflict develops, and other ethical and practical concerns? Who provided such advice: independent counsel, or the debtor's proposed counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing?
Other considerations. Has proposed counsel demonstrated or represented to this Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: concurrent with any other hearings in this case, and also on 5/1/18 at 2:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
2:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
2:00 PM
Docket 0
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling. The Court has been informed that the parties may have negotiated a modification to the settlement that was announced on the record at the 4/10/18 hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
8:30 AM
Docket 26
Appearances required.
This is the second time known to this Court that counsel for the debtor has submitted papers with the same obvious defect (using liquidation value when the statute requires fair market value). See 11 U.S.C. 506(a) (further explained below). In the prior case with the same issue, counsel withdrew the motion after this Court pointed out the defect. See In re Graciela Redden (Case No. 2:17-bk-17-25324, dkt. 21 & 27), and see tentative ruling for 4/5/18, 8:30 a.m., calendar no. 5.
Counsel must appear and explain why she continues to file papers that appear plainly to violate 11 U.S.C. 506. This Court presumes that counsel will not charge the debtors or the estate for this appearance. If counsel believes that charges are appropriate, she must argue for such charges at this hearing.
The tentative ruling is to continue this motion to 6/7/18 at 8:30 a.m., with deadline of 5/24/18 for the debtors to file and serve supplemental papers addressing the valuation issue. Alternatively, if the debtors prefer, they may file and serve a withdrawal of the motion.
Explanation: The evidence in support of the motion (dkt. 26, Ex.4) states that the appraised value is based on a "liquidation" value which is defined as, among other things: "[t]he most probable price ... under the following conditions: (1) consummation of a sale within a short period of time ... (4) the seller is under extreme compulsion to sell ... (7) a normal marketing effort is not possible due to the brief exposure of time." These assumptions are inconsistent with 11 U.S.C. 506(a)(1), which requires that the value be determined "in light of the purpose of the valuation and of the proposed
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disposition or use of such property ...." There is no evidence that the debtors are contemplating a sale of the subject property, let alone a forced liquidation sale. To the contrary, if any sale were necessary there are provisions in the Bankruptcy Code that permit an orderly, well-marketed sale for the maximum market value.
This Court presumes that the debtors' appraiser can use the prior investigation of the subject property to arrive at an alleged fair market valuation by the deadline stated at the start of this tentative ruling. If that valuation is sufficient to support the motion then this matter will go forward; and otherwise the debtors should file a withdrawal of the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alfredo Medina Represented By Julie J Villalobos
Joint Debtor(s):
Jen G Morales Represented By Julie J Villalobos
Movant(s):
Alfredo Medina Represented By Julie J Villalobos
Jen G Morales Represented By Julie J Villalobos Julie J Villalobos
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
- NONE LISTED -
Debtor(s):
Maria De Los Angeles Rea Represented By A Mina Tran
Movant(s):
Maria De Los Angeles Rea Represented By A Mina Tran
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 67
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 68).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria Guadalupe Pena Represented By Sylvia Lew David A Tilem
Movant(s):
Maria Guadalupe Pena Represented By Sylvia Lew David A Tilem
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 51
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 54).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Harold Mark Griffin Represented By Steven A Alpert
Movant(s):
Harold Mark Griffin Represented By Steven A Alpert
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 33
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cliffton Cornell Represented By
Edmond Richard McGuire
Joint Debtor(s):
Michelle Cornell Represented By
Edmond Richard McGuire
Movant(s):
Cliffton Cornell Represented By
Edmond Richard McGuire
Michelle Cornell Represented By
Edmond Richard McGuire
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 34
Appearances required by debtor's counsel. There is no tentative ruling, but debtor's counsel should be prepared to address the issues raised by this Court in its order temporarily denying counsel's fee application (dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lillie Pearl Bowen Represented By Scott Kosner
Movant(s):
Lillie Pearl Bowen Represented By Scott Kosner
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 87
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 90).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Christopher Michael Gerakios Represented By Arsen Pogosov
Joint Debtor(s):
Nicole Lee Gerakios Represented By Arsen Pogosov
Movant(s):
Christopher Michael Gerakios Represented By Arsen Pogosov
Nicole Lee Gerakios Represented By Arsen Pogosov Arsen Pogosov
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 40
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rogelio Vega Represented By Rebecca Tomilowitz
Joint Debtor(s):
Sonia Vega Represented By
Rebecca Tomilowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Cavalry SPV I, LLC as assignee of Capital One Bank (USA), N.A.
Docket 31
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashley Lien Dang Represented By Thomas B Ure
Movant(s):
Ashley Lien Dang Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 30
- NONE LISTED -
Debtor(s):
Ashley Lien Dang Represented By Thomas B Ure
Movant(s):
Ashley Lien Dang Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 63
- NONE LISTED -
Debtor(s):
Eva Anderson Represented By Andre A Khansari
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
Continue to 6/7/18 at 8:30 a.m. to address the following issues. Appearances are not required on 5/3/18. If the following issues are adequately addressed, then this Court anticipates that the tentative ruling for the continued hearing will be to grant the motion (but, as always, parties in interest should check the tentative rulings posted prior to that continued hearing).
Reasons:
Missing mandatory form F 3007-1.1.NOTICE.OBJ.CLAIM. The debtor failed to use mandatory form F 3007-1.1.NOTICE.OBJ.CLAIM as required by LBR 3007-1(b). The debtor is directed to file and serve this form on American First Finance by no later than 5/17/18.
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
No later than 5/17/18 the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
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No fees absent specific order. Counsel is prohibited from charging any fees on this matter (including all past, present and future work related to this claim objection) and is directed to return any fees that might be (or might have already been) awarded relative to this matter, unless this Court expressly states in a future tentative ruling or written order that the cost/benefit analysis warrants charging fees.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lawrence K Burkley Represented By Donna R Dishbak
Movant(s):
Lawrence K Burkley Represented By Donna R Dishbak
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 38
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Supplemental Declaration of Kelvin J. Lo In Support of Debtors' Objection to Claim No. 2 (dkt. 46).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sunny H Luong Represented By Michael Y Lo
Joint Debtor(s):
Tiffany Ly Represented By
Michael Y Lo
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 35
Deny for the reasons stated in the opposition (dkt. 44) and because the debtor failed to use mandatory form F 3007-1.1.NOTICE.OBJ.CLAIM as required by LBR 3007-1(b). This Court notes that the proofs of service on the motion papers (dkt. 35 at PDF p.5; dkt. 40 at PDF p.5) are signed by "ALBERT KNOWLES dba The Bankruptcy Clinic," and it appears that Mr.
Knowles may be practicing law without a license and/or providing bankruptcy advice in violation of 11 U.S.C. 110 and/or charging the debtor for services that are actually counterproductive; and therefore the tentative ruling is that this Court will issue an order directing the debtor and Mr. Knowles to appear and address those issues. Appearances are not required on 5/3/18.
Proposed order: Claimant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Ramona Theresa McCauley Pro Se
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 34
Deny for the reasons set forth below. This Court will prepare an order after the hearing date. This Court notes that the proofs of service on the motion papers (dkt. 34 at PDF p.5; dkt. 39 at PDF p.5) are signed by "ALBERT KNOWLES dba The Bankruptcy Clinic," and it appears that Mr. Knowles may be practicing law without a license and/or providing bankruptcy advice in violation of 11 U.S.C. 110 and/or charging the debtor for services that are actually counterproductive; and therefore the tentative ruling is that this Court will issue an order directing the debtor and Mr. Knowles to appear and address those issues. Appearances are not required on 5/3/18.
Reasons:
The motion (claim objection) does not state any actual grounds for disallowance (it just states that the claim is "inaccurate," but does not say why, nor is there any evidence attached to the motion, except for the debtor's bankruptcy schedules which actually show a larger debt (undisputed) than the proof of claim no. 8).
No copy of the claim is attached (as required by the Local Rules).
The proof of service (dkt. 34 at PDF p.5) does not state when the motion was mailed, nor does it actually state that the creditor was served (the check-box for "Service information continued on attached page" is not checked, although presumably the service list relates to the proof of service).
The debtor failed to use mandatory form F
3007-1.1.NOTICE.OBJ.CLAIM as required by LBR 3007-1(b).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Ramona Theresa McCauley Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 36
Deny for the reasons set forth below. This Court will prepare an order after the hearing date. This Court notes that the proofs of service on the motion papers (dkt. 36 at PDF p.5; dkt. 38 at PDF p.5) are signed by "ALBERT KNOWLES dba The Bankruptcy Clinic," and it appears that Mr. Knowles may be practicing law without a license and/or providing bankruptcy advice in violation of 11 U.S.C. 110 and/or charging the debtor for services that are actually counterproductive; and therefore the tentative ruling is that this Court will issue an order directing the debtor and Mr. Knowles to appear and address those issues. Appearances are not required on 5/3/18.
Reasons:
The motion (claim objection) does not state any actual grounds for disallowance (it just states that the claim is "inaccurate," but does not say why, nor is there any evidence attached to the motion, except for the debtor's bankruptcy schedules which actually show a larger debt (undisputed) than the proof of claim no. 9).
No copy of the claim is attached (as required by the Local Rules).
The proof of service (dkt. 38 at PDF p.5) does not state when the motion was mailed, nor does it actually state that the creditor was served (the check-box for "Service information continued on attached page" is not checked, although presumably the service list relates to the proof of service).
The address in the proof of service does not match the address for notices in the proof of claim (the "c/o" information could cause the mail to be misdirected).
The debtor failed to use mandatory form F
3007-1.1.NOTICE.OBJ.CLAIM as required by LBR 3007-1(b).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Ramona Theresa McCauley Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Order to show cause re status of proposed sale and disposition of any proceeds
Docket 47
Appearances required by the debtor and debtor's counsel. There is no tentative ruling, but the debtor should be prepared to address the issues raised in this Court's Order to Show Cause re Status of Proposed Sale and Disposition of Any Proceeds (dkt. 47).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jeneve Medina Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 35
Tentative Ruling for 5/3/18:
Appearances required by the debtor and Alex Jurado. There is no tentative ruling, but the parties should be prepared to address the issues raised in this court's Order to Show Cause re (1) Dismissal with a 2-Year Bar and (2) Sanctions (dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ana M Cabrera Pro Se
Trustee(s):
Jason M Rund (TR) Pro Se
8:30 AM
Docket 29
Tentative Ruling for 5/3/18:
Appearances required by the debtors, Alex Jurado, and Fernando Jurado. There is no tentative ruling, but the parties should be prepared to address the issues raised in this court's Order to Show Cause re (1) Dismissal with a 2- Year Bar and (2) Sanctions (dkt. 29).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Herrera Pro Se
Joint Debtor(s):
Anais Cabrera Pro Se
Trustee(s):
Elissa Miller (TR) Pro Se
8:30 AM
Docket 9
Tentative Ruling for 5/3/18:
Appearances required by the debtor. There is no tentative ruling, but the debtor should be prepared to address the issues raised in this court's Order to Show Cause re Dismissal Due to Simultaneous Bankruptcy Cases (dkt. 9).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Leonardo Corona Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 10/5/17, 12/7/17, 03/08/18
Docket 91
Debtor(s):
Manuel Madrid Munoz Represented By Leonard Pena
Joint Debtor(s):
Vilma Yolanda Madrid Represented By Leonard Pena
Movant(s):
Manuel Madrid Munoz Represented By Leonard Pena
Vilma Yolanda Madrid Represented By Leonard Pena
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 79
Appearances required. There is no tentative ruling, but the parties should be prepared to address (1) the procedural and substantive aspects of the lienholder's arguments about granting it relief, including vacating the order confirming the plan, which are raised in their opposition (dkt. 83) to the debtor's motion to avoid the lien (dkt. 79), and (2) if this Court determines that it is appropriate to address the merits of the underlying dispute, how the parties propose to resolve their valuation issues - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), or (iii) through mediation.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis Alfonso Duran Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Joint Debtor(s):
Alejandra Janeth Campos Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
8:30 AM
Movant(s):
Luis Alfonso Duran Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Alejandra Janeth Campos Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 12/7/17, 1/11/18, 03/08/18
Docket 38
Debtor(s):
Xuri Worthing Webb Represented By Daniel I Barness
Movant(s):
Xuri Worthing Webb Represented By Daniel I Barness Daniel I Barness
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
Debtor(s):
Yumi Chan Represented By
Darren G Smith
Movant(s):
Yumi Chan Represented By
Darren G Smith Darren G Smith
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
in Contempt of Court for Violation of the Automatic Stay
fr. 03/08/18
Docket 23
Debtor(s):
George Esparza Represented By Barry E Borowitz Nancy B Clark
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 1/11/18, 03/08/18, 4/5/18
Docket 21
Tentative Ruling for 5/3/18:
Deny based on the valuation by a third party appraiser (dkt. 37), because this Court's records indicate that the parties previously agreed such an appraisal would be binding for purposes of this motion, and at the hearing on 4/5/18 the parties appeared to agree that this appraisal resolved the motion and that one or another of them would lodge a proposed order denying the motion. This matter was continued (see dkt. 34) for entry of such an order (or for other appropriate proceedings) but no such proposed order has been seen by this Court. Appearances are not required.
Proposed order: The junior lienholder is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 4/5/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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This matter has been continued from 3/8/18 and 1/11/18 to provide the parties with an opportunity to engage in settlement negotiations and, apparently, agree to an order granting the motion in substantial part based on a third party appraisal. There is no tentative ruling, but the parties should be prepared to address the status of those things.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following issues:
Valuation dispute
The parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
Settlement
The parties should address whether this court should continue this matter to provide the parties with an opportunity to engage in settlement negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anna Kusnier Represented By Julie J Villalobos
Movant(s):
Anna Kusnier Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 04/05/18
Docket 40
Tentative Ruling for 5/3/18:
Appearances Required.
Issues:
Missing mandatory form F 3007-1.1NOTICE.OBJ.CLAIM. The debtor failed to file the mandatory form F 3007-1.1.NOTICE.OBJ.CLAIM as required by LBR 3007-1(b). The debtor is cautioned that failure to follow this Court's rules and procedures in future may result in adverse consequences.
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that the claim objection, if successful, would result in a benefit that exceeds the costs of counsel's fees. However, the debtor failed to include any analysis demonstrating that this is so. The debtor is cautioned that failure to follow this Court's rules and procedures in future may result in adverse consequences.
Evidentiary issues. The parties should address whether they have finished investigating the facts and either informally or formally exchanging information, and how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on a written record (to
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save costs, if all parties consent), or (iii) through mediation.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Felisa Dee Richards Represented By Eliza Ghanooni
Movant(s):
Felisa Dee Richards Represented By Eliza Ghanooni Eliza Ghanooni
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 8
Tentative Ruling for 5/3/18:
Appearances required by the debtor and debtor's counsel. The tentative ruling is to dismiss this case, with a 180 day bar against being a debtor in bankruptcy, for the debtor's willful failure to appear in proper prosecution of this case. See 11 U.S.C. 109(g)(1).
Current Issues.
Background. This case was commenced on 11/22/17. The debtor's bankruptcy schedules assert that he has no debts other than a first and second deed of trust of his residence, both of which are oversecured. The debtor apparently fell behind on one of his deeds of trust (see Claim No. 2-1, item 9, listing $8,307.90 needed to cure defaults as of petition date, and Notice of Default at dkt. 59, PDF p.8).
The debtor filed a motion to avoid the second deed of trust lien that was defective in numerous respects, as set forth in the Tentative Ruling for 2/8/18 (reproduced below). That motion was denied.
This Court has warned the debtor and his attorney at prior hearings that if they continued to file improper papers, or to move this case forward, then this Court might have to find that they are willfully failing to appear in proper prosecution of this case. At the hearing on 4/5/18 this Court set a deadline of 4/19/18 for the debtor to file an amended plan and all other documents appropriate to move this case forward.
This Court has reviewed debtor's Amended Plan (dkt. 56), Amended Schedules I & J (dkt. 58), the Supplemental Aviles Declaration (dkt. 59), the proofs of claim filed by Wells Fargo Bank, N.A. as both senior and junior lienholder (Claim Nos. 1-1, 1-2, and 2-1), and the Debtor's Supplemental Declaration (dkt. 60).
Supplemental Aviles Declaration. The declaration makes no sense.
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For example, Mr. Aviles declares (dkt. 59, p.2:17-19): "If Wells Fargo Bank
N.A. believed that the [debtor's prior bankruptcy case under] Chapter 7 had discharged the debt owed as to the arrearages [then] Wells Fargo Bank N.A. would not have proceeded with foreclosure proceedings due to the arrearages owed by debtor ...." That is ridiculous.
A discharge in bankruptcy applies to in personam liability, and has nothing to do with in rem liability. For example, if a debtor borrows $100 secured by collateral, that debtor may be able to discharge the $100 (plus interest and other charges) as in personam liability, but if the debtor wants to retain the collateral then the debtor has to pay the full $100 (plus interest and other charges) or alternatively file a proper motion to reduce the lien (which the debtor has not done and apparently cannot do under the facts of this case). In other words, a debtor cannot have it both ways: keep valuable collateral but not pay for it.
Amended Bankruptcy Schedules I & J (dkt. 58). First, the debtor's scheduled expenses appear to be far too low to be realistic. For example, the debtor only lists $65/mo for food. This is not a basis for any feasible chapter 13 plan. If the debtor is receiving a contribution from a third party then that should have been disclosed in the bankruptcy schedules and/or a supporting declaration.
Second, if the debtor's amended bankruptcy schedules I & J are to be believed, he has monthly net income of $606.42, after $757/mo. of mortgage expenses. But the debtor appears to ignore one of his two mortgages: one monthly payment is $767.53 (Claim No. 2-1, at PDF p.4, last column) and another is $470.08 (Claim No. 2-1, at PDF p.6, last column). That would leave monthly net income of only $125.81 ($606.42 - shortfall of $10.53 on one mortgage - $470.08 on the other mortgage = $125.81).
Amended Plan (dkt. 56). The debtor apparently contemplates plan payments of $256.17 per month for 36 months, although what his plan actually states is that the "base amount" (the total of all monthly payments) is only $256.17.
In any event, the $256.17/mo. would go to only two things: (i) paying the Chapter 13 Trustee's fee (11% of all distributions) and (ii) paying Class 2 (the $8,307.90 arrears) at $230.78/mo over 36 months with 0% interest. But the debtor cannot afford that because, as set forth above, he only has net
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income of $125.81/mo. (and even that assumes expenses that appear to be unrealistically low).
True, if the plan were extended to 60 months then the payments in Class 2 could be reduced to $138.65/mo. ($8,307.90 / 60 = $138.65), but that is still above $125.81, and it assumes 0% interest and living expenses that appear to be unrealistic.
(This Court notes that the plan is defective in another respect. The plan's liquidation analysis is internally inconsistent. It states that in a chapter 7 case there would be $0 available but that this would result in an estimated 11% dividend.)
The bottom line is that the debtor's proposed chapter 13 plan appears to be totally unrealistic. If there is any way for the debtor to make proper use of chapter 13 (e.g., if he could propose a sale of his property or a refinance), he has not pursued it. This case is over five months old and so far the debtor has made no progress at all.
(d) Dismissal With a Bar. At the hearing on 4/5/18, this Court cautioned the debtor and debtor's counsel that if they continued to file inadequate information, did not seek assistance from an experienced bankruptcy attorney, and otherwise failed to appear in proper prosecution of this case, then this Court might have to dismiss this case with a bar against being a debtor in a future bankruptcy case for some period of time. At the hearing they should address how the record in this case is consistent with anything other than a willful failure to appear in proper prosecution.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/5/18:
Appearances required by the debtor and debtor's counsel.
At a hearing on 2/8/18, this court denied the debtor's motion to avoid the
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junior liens of Wells Fargo and the City of Pomona, Housing Division on his principal residence under 506(d) for the reasons set forth below in this court's tentative ruling. In light of debtor's counsel's apparent lack of bankrupty experience, this court also set this status conference to determine whether the debtor has associated in, or obtained, new counsel and is properly prosecuting this case.
On 3/5/18, debtor's counsel requested a continuance of this hearing due to a death in the family. On 3/6/18, this court granted the request to continue the hearing and directed debtor and debtor's counsel, Mr. Aviles, to appear and show cause why sanctions, dismissal with a bar, or other relief should not be imposed (dkt. 37) (the "OSC").
There is no tentative ruling, but the debtor and debtor's counsel should be prepared to address the issues identified in the OSC.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/8/18 on motion to avoid lien:
(1) Deny for the reasons set forth in the opposition (dkt. 22) filed by Wells Fargo Bank, N.A. ("Wells Fargo") and the additional reasons set forth below, and (2) direct counsel to address at the hearing (a) why he should be allowed any fees for this motion, (b) whether he is competent to represent the debtor at all, and (c) whether he should be associating experienced bankruptcy counsel or arranging for a substitution of counsel and transfer of any fees received from the debtor. Appearances required by counsel for the debtor and by the debtor himself (counsel for the debtor must appear in person, but the debtor and any other parties in interest may appear by telephone if they follow Judge Bason's posted procedures for telephonic appearances, available at www.cacb.uscourts.gov).
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Proposed order: Wells Fargo is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons for denial: The debtor seeks to avoid the junior liens of Wells Fargo and the City of Pomona, Housing Division's ("Pomona") on his principal residence pursuant to section 506(d). But on the record before this court (1) service is inadequate, (2) the evidence is inadequate, and (3) there is no basis to avoid either lien (in whole or in part) under section 506(d).
Service is inadequate
The proof of service (dkt. 8, last 2 pages) fails to comply with the rules for service. Service on Pomona does not comply with Rule 7004(b)(6).
This court also notes that service on Wells Fargo was defective, although Wells Fargo has waived any such defects by filing an opposition (in which it did not raise any deficiency in service). Among other things, Wells Fargo was not served to the attention of an officer as required by Rule 7004(b)(3) & (h) (Fed. R. Bankr. P.) (incorporated by Rule 9014(b), Fed. R. Bankr. P.).
Evidence is inadequate
The form motion includes a section for describing the supporting evidence by exhibit numbers. See dkt. 8, p.4, section 3.c. That section is mostly blank.
Section 506(d) does not support avoidance of either lien
The motion papers include an appraisal valuing the property at
$265,000. The debtor states that the total value of all liens against the property is $207,417.65. Motion, p.3, lines 3-7 (1st DOT $89,545.97 + Wells Fargo's 2nd DOT $65,157.55 + Pomona's 3rd DOT $48,714.13 =
$207,417.65). Therefore, according to the debtor's own evidence both liens are fully secured and cannot be avoided under section 506(d).
It appears that counsel for the debtor has mistakenly conflated two sections of the Bankruptcy Code:
section 506(d) (which only permits avoidance of liens to the extent they are "under water" (and sometimes not even then - see 11 U.S.C. 1322(b) (2)), and
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11 U.S.C. 522(f), which permits avoidance of judicial liens to the
extent that they impair a valid homestead exemption: there is no showing that the liens of Wells Fargo or Pomona are "judicial" liens, and in any event the motion neither seeks nor establishes a sufficient basis for avoidance under section 522(f).
The debtor's reply (dkt. 24) cites irrelevant cases. One case was decided under section 522(f) (and much of its discussion involves matters that have since been mooted by the 2005 revisions to the Bankruptcy Code). See In re Smith, 92 B.R. 287 (Bankr. S.D. Ohio 1988). The debtor cites one other case, for the proposition that "a Motion to Strip [a junior] mortgage may be filed, despite [the fact] that Debtor already obtained a Chapter 7 Discharge." Dkt. 24, p.1:24-25 (citing In re Blendheim, 803 F.3d 477 (9th Cir. 2015)). That issue is irrelevant to whether the lien is partially or wholly unsecured; and on the debtor's own facts the subject liens are wholly secured.
Counsel's fees and competence
Bankruptcy is a complex specialty. It appears that the debtor's counsel is not sufficiently familiar with the Bankruptcy Code and Rules to represent the debtor, either in this specific matter or more generally in this bankruptcy case. Awarding fees for the counterproductive work on this matter would only harm the debtor and creditors, and going forward this Bankruptcy Court is concerned about the potential for irreparable harm to the debtor and creditors. Counsel should be prepared to address (a) whether new counsel should be substituted in and (b) whether any fees that the debtor or the Chapter 13 Trustee may have paid to such counsel should be transferred to new counsel.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
8:30 AM
Debtor(s):
Ronald Martinez Represented By Moises A Aviles
Movant(s):
Ronald Martinez Represented By Moises A Aviles
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 4/5/18
Docket 1
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 28, 5/3/18 at 8:30 a.m.).
Tentative Ruling for 4/5/18:
Please see the tentative ruling for the status conference and OSC (calendar no. 23, 4/5/18 at 8:30 a.m.).
Debtor(s):
Ronald Martinez Represented By Moises A Aviles
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
Debtor(s):
Graciela Redden Represented By Julie J Villalobos
Movant(s):
Graciela Redden Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 4/5/18
Docket 11
Tentative Ruling for 5/3/18:
Deny as moot for the reasons stated in the Supplemental Declaration (dkt. 23). Appearances are not required on 5/3/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/5/18:
Continue to 5/3/18 at 8:30 a.m., with a deadline of 4/19/18 to file and serve the debtor's declaration addressing the following issue. Appearances are not required on 4/5/18.
Reasons: The evidence in support of the motion (dkt. 11, p.9 & Ex.B) is a Kelley Blue Book printout that states that it is a "private party" value, but under 11 U.S.C. 506(a)(2) the value means "the price a retail merchant would charge for the property ..." (emphasis added) (which this Court expects is higher than the "private party" value). The tentative ruling is to continue the hearing to the above date and time and direct the debtor to submit a supplemental declaration addressing this issue.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
La Tanya R. Taylor Represented By Sundee M Teeple Craig K Streed
Movant(s):
La Tanya R. Taylor Represented By Sundee M Teeple Sundee M Teeple Sundee M Teeple Sundee M Teeple Craig K Streed Craig K Streed Craig K Streed Craig K Streed
Trustee(s):
Kathy A Dockery (TR) Pro Se
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of the estate pursuant to 11 U.S.C. section 542(a)
Docket 124
The tentative ruling is to deny the motion for the reasons stated below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Ditech Financial LLC's Opposition (dkt. 130)
Reasons for denial: The debtor seeks a turnover order for $10,193.15 (the "Turnover Amount") in disbursements made by the chapter 13 trustee to Ditech Financial, LLC's predecessor-in-interest (together, "Ditech") prior to 3/1/13 pursuant to the terms of debtor's confirmed chapter 13 plan, based on this court's order granting debtor's objection to Ditech's claim for $56,981.30 in arrears (dkt. 91) following the debtor's negotiation of a loan modification.
Debtor contends there is an ambiguity in the Loan Modification Agreement documents as to whether the Turnover Amount was taken into consideration for purposes of the modified principal balance owing under the loan modification, but asserts that any ambiguity should be resolved in the debtor's favor (dkt. 124, p. 7, lines 1-5; Loan Modification Agreement, page 3, provision 3.B).
Ditech contends that the Turnover Amount was applied towards the outstanding principal for purposes of the Loan Modification and requiring it to turn over the funds would be a breach of the parties' agreement that would necessitate an adversary proceeding to void the Loan Modification Agreement. (dkt. 130, p. 4, lines 9-12, 18-22).
In this Court's view, Ditech has the better argument. The Loan
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Modification Agreement states:
The modified principal balance of my Note will include all amounts and arrearages that will be past due as of the Modification Effective Date (including unpaid and deferred interest, fees, escrow advances and other costs, but excluding unpaid late charges, collectively, 'Unpaid Amounts') less any amounts paid to the Lender but not previously credited to my Loan. [Dkt. 130, Exhibit 2, p.3, section 3B]
The "modified effective date" is defined as March 1, 2013. [Dkt. 130, Ehibit 2, p. 3, section 3.]
Additionally, on 6/5/15 Ditech (formerly known as Green Tree Servicing LLC) filed a Motion for Consent to Enter into Loan Modification Agreement (dkt. 111), which states, in relevant part: "The Loan Modification Agreement provides for a lower interest rate and the capitalization of arrears into a modified principal balance "
Based on the foregoing, it would appear that Ditech's predecessor arrived at the modified principal balance of $301,602.91 by crediting all payments received prior to 3/1/13 and capitalizing all remaining principal, arrears, interest, fees, escrow advances and other costs, but excluding unpaid late charges.
The debtor has not presented any evidence (such as an accounting reflecting a history of all payments and credits) to show that she did not receive a credit for the $10,193.15 in funds paid to Ditech pursuant to her confirmed plan for the then outstanding arrears. Therefore, the tentative ruling is that the debtor has failed to demonstrate that the Turnover Amount is property of the estate pursuant to 11 U.S.C. 541 and subject to turnover.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
8:30 AM
Debtor(s):
Julia Edith Gonzalez Represented By
Anthony Obehi Egbase Onyinye N Anyama
W. Sloan Youkstetter Crystle J Lindsey
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 0
Appearances required. There is no tentative ruling, but the debtor should be prepared to address the issues raised in this Court's Order Setting Hearing on Debtor's Motion for Voluntary Dismissal of Chapter 13 Case (dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rita Simien DeJonge Represented By Gary Leibowitz
Jacqueline D Serrao
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
2:00 PM
Docket 92
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Supplement (dkt. 120); Official Committee of Unsecured Creditors' response in support (dkt. 137).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Into Post-Petition Insurance Premium Financing Agreement
Docket 100
Grant, without preservation of all parties' rights to argue about collateral issues when and if appropriate. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Official Committee of Unsecured Creditors' response in support (dkt. 139); The Bird Nest, LLC and the Archbishop's response (dkt. 144); and the debtor's reply (dkt. 159).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 96
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 97
Grant, except that service on the creditors' committee should be only to its counsel, not its members, except as to matters that concern them individually (and, in addition, the committee's counsel may arrange with any parties in interest send for all papers to be copied to committee members).
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date (see LBR 9021-1(b)(1)(B)) and attach a copy of this tentative ruling thereby incorporating it as this Court's final ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 112
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 93
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 98
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 103
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 5
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 36
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 3/20/18, 4/17/18
Docket 18
For 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
For 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 3/20/18, 4/17/18
Docket 20
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 9
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 4/17/18
Docket 68
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 1
Tentative Ruling for 5/3/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The only issue this Court intends to address is a continued hearing date in view of the last-minute papers that were filed, to fit the parties' and this Court's own needs.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear.
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash flow and cash collateral motion (dkt. 5, 14, 15, 29). This Court's written order (dkt. 29) erroneously lists the continued hearing as 3/20/18 instead of 4/17/18 at 2:00 p.m., as orally ordered at the hearing on 3/9/18. Nevertheless, it is appropriate in connection with this Status
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Conference to address the debtor's current and projected cash flow and related issues.
This Court was not persuaded at the hearing on 3/9/18 that the debtor can generate positive cash flow. The debtor is directed to provide a brief update on any plans to generate positive cash flow from her various businesses and properties. It is also appropriate for other parties in interest to address whether there has been adequate disclosure to date regarding the finances of those businesses and properties. The debtor is cautioned that the declaration due on 3/27/18 must provide comprehensive disclosures regarding those businesses and properties: if the debtor cannot show reasonable prospects for positive cash flow within a reasonable time then this Court might have to grant relief from the automatic stay (upon a proper motion), or convert or dismiss this bankruptcy case, at least if the debtor does not abandon unprofitable businesses or properties.
Employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt. 9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure), including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why were resumes for associates, paralegals, and persons who are "of counsel" to the firm not included? (ii) Has counsel waived or amended the provisions in the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined in the parties' papers)?
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Proposed special counsel: the Snyder firm (dkt. 36, 37). (i) What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
(ii) What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 4/17/18 at 2:00 p.m., status report due 4/3/18. (see order, dkt. 30).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/9/18:
[no tentative ruling was posted for this hearing]
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
of Business fr. 5/3/18
Docket 112
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 97
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 5/3/18
Docket 96
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Into Post-Petition Insurance Premium Financing Agreement fr. 5/3/18
Docket 100
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 5/3/18
Docket 1
Revised Tentative Ruling for 5/7/18:
Appearances required.
Current issues
Timing. The matters set forth below are all colloquially known as "first day," "emergency," or otherwise urgent motions that typically would have been resolved by now, except that the facts could not be determined without (expedited) discovery. See dkt. 175 (discovery order) and discussion below. In addition, motions for relief from the automatic stay generally are subject to a 30-day limit (11 U.S.C. 362(e)), although that has been extended in this case (and unless the debtor argues to the contrary this Court will presume that the debtor is consenting to a further continuance). See LBR 4001-1(c) (3). More generally, this Court has the authority to reduce or extend deadlines, with certain exceptions. See Rule 9006 (Fed. R. Bankr. P.).
The tentative ruling is that the dates set forth throughout this tentative ruling are appropriate under the foregoing authorities. The principal dates are:
5/14/18 for the debtor to file various supplemental declarations and other papers as explained below and for the parties to lodge a proposed order directing them to mandatory mediation;
5/21/18 for any responses from the official committee of general unsecured creditors (the "Committee"), The Bird Nest, LLC ("The Bird Nest"), The Roman Catholic Archbishop of Los Angeles and the California Institute of the Sisters of the Most Holy and Immaculate Heart of the Blessed Virgin Mary (together “RCALA”), and any other parties in interest, and
5/28/18 for the debtor to file any reply papers, and for the parties to file a joint status report, and
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a continued hearing on 6/12/18 at 3:00 p.m.
Cash collateral & budget motions (dkt. 5, 14, 15, 29, 74, 151, 152, 163, 164, 167, 168, 171, 172, 176, 185; and 96, 146, 161).
Legal standards, generally. A chapter 11 debtor who is in possession of the bankruptcy estate (11 U.S.C. 1101(1)) has the duties of a trustee for the benefit of creditors (11 U.S.C. 1107), including a fiduciary duty to protect and conserve property of the estate. See, e.g., In re McConville, 110 F.3d 47, 50 (9th Cir. 1997). Just like a trustee, the debtor may use, sell, or lease property of the bankruptcy estate in the "ordinary course of business" (11 U.S.C. 363(c)(1)), but may not use any property "other than in the ordinary course of business" without authorization from the Bankruptcy Court after notice and a hearing. 11 U.S.C. 363(b)(1) (emphasis added).
In addition, if property at issue is the "cash collateral" of any entity (as defined in 11 U.S.C. 363(a)) then the debtor may not use it at all without prior authorization (or the consent of the entities with an interest in that cash collateral). 11 U.S.C. 363(c)(2). For this reason, it is typical to hold an initial hearing on the use of cash collateral within the first days of a case, with one or more continued hearings thereafter. See generally Rule 4001(b)&(d) (Fed.
R. Bankr. P.).
Any entities with an interest in property of the estate (cash collateral or any other collateral) may request that the court require the debtor provide them with "adequate protection" of that interest. 11 U.S.C. 363(e). Then the Bankruptcy Court "shall" condition or prohibit any proposed use, sale, or lease of property to the extent necessary to provide such adequate protection.
Adequate protection must protect the economic interests of secured creditors against diminution after the bankruptcy petition date. It may come in various forms, such as periodic cash payments or liens on any unencumbered property. 11 U.S.C. 361.
Legal standards, as applied to individual debtors. There is not a great deal of authority about how to apply 11 U.S.C. 363(b)(2) and (c)(1) to individual debtors. First, if the ordinary course of "business" were read to mean only commercial business then a debtor might not be authorized to spend almost anything at all without prior court authorization. See In re Goldstein, 383 B.R. 496 (Bankr. C.D. Cal. 2007).
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But it is commonly accepted that ordinary living expenses are implicitly part of an individual debtor's everyday "business." Thus, the debtor is automatically authorized by section 363(b) to use property of the estate (except cash collateral) without court approval for such basics such as food, shelter, and ordinary and necessary expenses such as personal care products and other moderate expenses listed on bankruptcy Schedule J. See In re Seely, 492 B.R. 284, 289-91 (Bankr. C.D. Cal. 2013).
Second, in determining what use of property is "ordinary course," individual debtors' transactions appear to be subject to both (A) a "vertical" or "creditors' expectation" test and (B) a "horizontal" test, just like commercial business debtors. See Seely, 492 B.R. 284, 289-91 & n.7 (applying In re Dant & Russell, Inc., 853 F.2d 700, 704-05 (9th Cir. 1988), superseded by statute on other grounds, 11 U.S.C. § 365(d)(3)).
The "vertical" or "creditors' expectation" test asks whether the transaction at issue subjects a hypothetical creditor to economic risks of a nature different from those the creditor accepted when deciding to extend credit. This compares the debtor's proposed postpetition transaction with the debtor's prepetition background to see if there is a history of similar transactions. Dant & Russell, 853 F.2d 700, 704-05. The "horizontal" test asks whether persons who are similarly situated to the debtor ordinarily would engage in such transactions. Id.
In this Court's experience, debtors sometimes take an overly aggressive view of what is the "ordinary course" of their business. Therefore a budget motion is required under the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov). Compare Seely, 492 B.R. 284, n.5 & accompanying text (Bluebond, J.) (declining to require debtors to file budget motions, but cautioning that it may be advisable to seek prior authorization for any budget).
Once it is determined that section 363(b)(1) applies - i.e., that court authorization is required (beyond any authorization required for use of cash collateral) - it is unclear what standards the Bankruptcy Court should use in deciding whether or not to authorize a proposed expenditure. See In re Villalobos, 2011 WL 4485793 (9th Cir. BAP 8/19/11) (noting uncertainty, and remanding on that issue). The parties have not briefed that issue.
The tentative ruling is that the debtor bears the burden to establish that the proposed expenditure is in the best interests of the estate. See Goldstein, 383 B.R. 496, 502. For example, Goldstein involved divorcing
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debtors and the question was whether employment of special counsel to handle not only the property division aspect of the divorce but also the dissolution aspect would be "for the benefit of the estate and not for the debtor's personal benefit." Id. Because dissolution of the marriage was essential to disentangle the debtors' domestic lives, it was held that it was appropriate to authorize employment of counsel to handle both dissolution and property division. Id.
Note that the foregoing "best interests of creditors" test under section 363(b)(1) is in addition to, not in place of, the requirement for adequate protection under section 363(e). Therefore the relevant questions are as follows.
First, does the proposed budget of the debtor, Ms. Hollister, use cash in which Bird Nest or RCALA have an interest and, if so, has the debtor met her burden to show that those interests are adequately protected? Second, does the proposed budget include transactions that are out of the ordinary course and, if so, has the debtor met her burden to establish that the proposed expenditures are in the best interests of the estate?
Background: prior hearings on cash flow and asset valuation. Based on the record at the time of prior hearings, most extensively on 3/9/18, this Court has questioned whether the debtor can adequately protect the interests of The Bird Nest and RCALA in cash collateral. This Court has found that, among other things, (A) although the debtor's proposed budget, attached to her cash collateral motion, purports to show positive cash flow, that is undercut by the fact that the debtor prepaid her March, 2018 mortgage payments prepetition, and she omitted the ongoing estimated costs of repairs on certain properties, and taking those things into account her cash flow is negative, and (B) although the debtor asserts that The Bird Nest and RCALA are protected by equity cushion in her properties, that is undercut by the debtor's own inconsistent statements about the value of those properties and by accruing interest owed to Mrs. Staats as a senior lienholder, which erodes the value of those properties, all of which makes it uncertain whether there is any equity cushion or whether the net value of the creditors' interest in those properties is declining. See dkt. 5, Ex.A&B, and dkt. 175, p.1:21-24.
This Court was not persuaded to deny the motion to use cash collateral or deny the budget motion. But as a condition for interim approval of those motions this Court required expedited discovery and transparency by
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the debtor. The record before this Court, including the matters discussed below, establish that the debtor has not entirely lived up to those requirements. See dkt. 175.
Disputed interest in cash collateral. In the debtor's supplemental reply (dkt. 171, pp.4:22-6:11) the debtor for the first time sets forth an argument that The Bird Nest and RCALA do not actually have an interest in cash collateral, apart from approximately $55,000 in her bank account on the petition date. First, because this issue has only been addressed in the reply papers, this Court must presume for present purposes that those creditors have at least a disputed interest in cash collateral. Even a disputed interest must be adequately protected (if adequate protection did not apply to disputed interests then that would undermine the whole concept of adequate protection).
Second, this Court questions whether the debtor's analysis is correct.
Ordinarily a debtor's postpetition cash is generated as proceeds from collateral that existed on the petition date (e.g., rents from rental properties), and therefore ordinarily any creditor with a security interest in the real property and other assets also has a security interest in traceable proceeds and, as adequate protection, such creditors typically are granted a replacement lien in all postpetition property of the estate to the same validity, priority, extent, and non-avoidability as the security interest on the petition date, as part of "adequate protection" of the interests on the petition date.
See 11 U.S.C. 541, 552(b)(1), 1115. This Court is not aware of any reason to order otherwise in this case. In other words, based on the current record it appears that the debtor is incorrect that there is no postpetition cash collateral.
Third, supposing for the sake of discussion that The Bird Nest and RCALA actually were to lack an interest in cash collateral then that would only make it all the more important to adequately protect their interest in other collateral. The following tentative ruling therefore makes it a condition of the use of cash collateral, and of approval of the budget motion, that the debtor provide adequate protection with respect to all non-cash collateral.
For all of these reasons, the following tentative ruling presumes that The Bird Nest and RCALA have at least a disputed interest in the debtor's cash collateral. (For the same reasons, the fact that the debtor might have a viable avoidance action under 11 U.S.C. 547 is not dispositive. As the debtor
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notes, the possible solvency or insolvency of the debtor on and before the petition date cuts both ways. In any event, adequate protection is still needed.)
Evidentiary objections and response (dkt. 171, 185). The tentative ruling is as follows. To the extent that The Bird Nest and RCALA are objecting to the debtor's use of cash collateral on grounds of alleged lack of good faith, or on grounds that the proposed use of that cash to continue the nonbankruptcy litigation on appeal would be a waste of estate resources or otherwise not in the best interests of creditors, the debtor's motivations and assessment of the merits of the nonbankruptcy litigation are relevant. Obviously, the debtor is not an expert on the law, and her attorneys' views of the merits are just one perspective, but this Court can take those things into consideration. There is no jury in these bankruptcy disputes regarding the use of cash collateral, so there is no risk of prejudice to any jury, and this Court can accept the proferred evidence subject to the foregoing limitations. Subject to the foregoing, the tentative ruling is to overrule the evidentiary objections of The Bird Nest and RCALA.
Cash collateral and budget - general conclusions. The tentative ruling is that, in view of (A) this Court's prior findings about the debtor's lack of profitability and questionable asset values, (B) the debtor's admittedly poor recordkeeping and inconsistent statements, (C) the other concerns addressed throughout this tentative ruling, (D) questions about whether the Paramour is appropriately licensed, and (E) the other serious questions raised by The Bird Nest and RCALA, the debtor has not carried her burden to show that their interests in cash collateral are adequately protected by maintaining the status quo - i.e., by permitting the debtor to continue in control of the estate without supervision. Nevertheless, given the statements by The Bird Nest and RCALA themselves that liquidation of the Paramour property would result in adverse tax consequences that would consume any equity, and given that those creditors and all other creditors and parties in interest may be better protected by continuing to operate some of the debtor's businesses, the tentative ruling is that liquidation is not appropriate and someone - either the debtor or a trustee - must continue to operate the bankruptcy estate.
The question is whether the debtor can be trusted to continue in
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possession of the bankruptcy estate. Based on the record in this case, including the issues discussed below, this Court has serious questions whether the debtor can be relied upon not to dissipate or hide assets, grossly mismanage the estate, or otherwise fail to live up to her obligations as a debtor in possession with the duties of a trustee for the benefit of creditors.
This Court reminds the debtor of those obligations, including but not limited to the requirements to "be accountable for all property received" and to "furnish such information concerning the estate and the estate's administration as is required by [any] party in interest." 11 U.S.C. 1106(a)(1) (incorporating 11 U.S.C. 704(a)(2) & (7)), and see 11 U.S.C. 1101 & 1107.
The tentative ruling is that such a reminder is not sufficient, given the history of this case to date. Accordingly, the tentative ruling is to impose the following conditions on the debtor's continued authorization to use cash collateral.
First, the tentative ruling is to direct the United States Trustee to appoint an examiner.
Second, the tentative ruling is to require the debtor not to enter into any contracts or use any cash collateral or other property of the estate without prior written authorization from The Bird Nest and RCALA, who must have unfettered access to the debtor's premises and books and records at any time without prior notice. If the debtor fails to abide by these obligations then the tentative ruling is that this Court will be prepared, upon a proper declaration, to approve an order for the appointment of a trustee.
Third, subject to certain exceptions noted below, the tentative ruling is to continue the interim authorization to use cash collateral on the same terms as before, with replacement liens under 11 U.S.C.
552(b), and to continue this hearing to the same date as the continued status conference.
Exception: insurance. The debtor has provided evidence that the insurance policy premiums of $1,065/mo. are "ordinary" under the vertical test, because she apparently has been paying them for several years (she declares that she purchased the policy in 2012). See dkt. 161, p.4, para.
3. But the debtor provides no argument or evidence that the expense of a $3 million insurance policy is "ordinary" under the horizontal test.
Therefore, court approval is required under section 362(b)(1), and the
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debtor bears the burden to show that the proposed expenditure is in the best interests of the estate. The debtor has not done so.
In addition, the debtor must show that paying for $3 million of coverage is consistent with providing adequate protection to Bird Nest and RCALA.
The debtor has not done so.
Accordingly, the tentative ruling is to disapprove the proposed expenditure for this life insurance. The debtor can address at today's hearing whether a different (lesser) life insurance policy is appropriate, and how much time she should have before having to replace the existing policy.
Car payments. The debtor pays a considerable monthly charge for her vehicle, consisting of both payments on the car loan balance of approximately $68,000 and "what appears to be 3 years of pre-paid maintenance." Dkt. 161, p.3:5. The debtor states that she is not opposed to seeking to refinance this debt, when she has more time. Dkt. 161, p.5, para. 11.
The tentative ruling is that no later than 5/14/18 the debtor must file and serve a motion for authority to refinance the vehicle. That motion must be self-calendared for the same date and time as the continued status conference.
Motion for relief from the automatic stay to pursue appellate litigation (the "R/S Motion") (dkt. 68, 79, 141, 147, 154, 162). This is a somewhat unusual motion in that it is the debtor herself who is seeking relief from the automatic stay, to pursue her appeal from the nonbankruptcy judgments in favor of The Bird Nest and RCALA. Nevertheless, the legal framework is the same as for a creditor's motion for relief from the automatic stay.
The (nonexclusive, non-mandatory) factors that typically are used to assess whether to grant relief from the automatic stay to pursue nonbankruptcy litigation are well known and have been argued by the parties, so this Court need not repeat them here. See generally In re Curtis, 40 B.R. 795, 799–800 (Bankr. D. Utah 1984); In re Kronemeyer, 405 B.R. 915 (9th
Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004); In re Landmark Fence Co., Inc., 2011 WL 6826253 at
*4 (C.D. Cal. Dec. 9, 2011).
Having reviewed all the usual factors and, more broadly, the facts and
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circumstances of this case, the tentative ruling is to agree with the Committee's argument (dkt. 154, pp.2:22-3:16) that a continuance is appropriate. More evidence is needed regarding (i) the solvency or insolvency of the debtor's bankruptcy estate and (ii) the projected costs of the appellate litigation.
The tentative ruling is to defer ruling on the R/S Motion until the time of the continued statutus conference - by which time further evidence presumably will be available - but meanwhile to continue the R/S Motion to the same date and time as the continued status conference as a "holding date." At that time this Court can, if appropriate, set a schedule for further evidence or other matters.
Motion to authorize transaction out of ordinary course re Bridge Tavern, LLC ("Bridge") (dkt. 112, 140, 150, 156) and motion to employ Urbanlime Real Estate (Leslie Haro) ("Urbanlime") (dkt. 93, 121, 133, 134, 142, 157, 177, 179). No written opposition has been filed to the motion to liquidate and wind up Bridge (dkt. 112, the "Bridge Motion"). It is also supported by the Committee (dkt. 140). The motion to employ Urbanlime (dkt. 93, the "Urbanlime Motion") is opposed by Pierre Casanova, a co-owner of LLCs related to the Cliff's Edge restaurant. It is supported, however, by the Committee (dkt. 142).
Although the record is not entirely clear (mostly due to an apparent lack of transparency by the debtor), several aspects of these related motions are troubling. The debtor apparently has disregarded her duties as a trustee for the benefit of creditors by: (i) entering into a commitment to transfer the Bridge leasehold without the landlord's consent, (ii) reopening the Bridge business without notice or authorization by this Court, (iii) hiring a professional, out of the ordinary course of her business, without court authorization, so as to retroactively create books and records, without any notice or assurance that the professional is disinterested and qualified, (iv) marketing businesses for sale before having reliable books and records for those businesses, thereby possibly chilling the current bidding and any future sales, (v) hiring Urbanlime as a broker without safeguards required by this Court, and (vi) marketing and entering into an agreement to sell the Cliff's Edge-related LLCs without proper notice to, let alone authorization by, the co- owner of those LLCs.
Landlord. Attached to the Bridge Motion is an agreement to
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sell the business for $495,000 (the "Bridge Agreement"), and although that agreement is expressly contingent on this Court's approval (dkt. 112, Ex.1, para. 24) it does not appear (from this Court's brief review) to include any contingency for approval by the landlord. After the Bridge Motion was filed, the debtor and landlord Odysseus Investment Group, LLC ("Bridge Landlord") stipulated (dkt. 150) to continue the hearing - presumably to address whether the landlord will consent to the assignment of the leasehold.
Is this Court misinterpreting the record? Regardless, why did the debtor market the Bridge assets, enter into the Bridge Agreement, and file the Bridge Motion without obtaining the Bridge Landlord's consent, or even disclosing in the Bridge Motion that such consent was needed? What is the status of the debtor's negotiations with Bridge Landlord? Have those negotiations resulted in any new terms that would make the proposed Bridge Agreement less advantageous for the estate and/or require disclosure to creditors and an opportunity to object by amending and re-noticing the Bridge Motion? The tentative ruling is to set a deadline of 5/14/18 for the debtor to file and serve her declaration addressing those things.
Reopening the business. The debtor's reply in support of the motion to hire Urbanlime states (dkt. 157, p.3:4-6) that the Bridge business ("Villain's Tavern") previously was not operating but as of April 20, 2018 it has been reopened. Again, this revelation is troubling.
Has reopening the business cost the bankruptcy estate money? Is the debtor certain to recoup that money?
This Court recognizes that, even if it involved some expense, reopening the business might be the best way to maximize the Bridge assets' value, or could be a good idea for other reasons. But that is not the point.
The point is that, just as the debtor acknowledges that causing Bridge to sell its business is a transaction out of the ordinary course, so is causing Bridge to reopen its closed business. In other words, the debtor has used estate assets "other than in the ordinary course of business," requiring approval under 11 U.S.C. 363(b) (emphasis added). Why did the debtor act without Court authorization?
This Court also recognizes that reopening the business might not cost the bankruptcy estate anything if the business is being funded and operated by the proposed new owner. But that in itself would be a transaction out of the ordinary course.
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All of the foregoing raises the question what is actually meant by the
debtor's delphic phrase that Villain's Tavern "has been reopened and is now operating." Dkt. 157, p.3:6. The tentative ruling is to set a deadline of 5/14/18 for the debtor to file and serve her declaration addressing those things.
"Controller" Jeffrey Garrison. The same reply in support of the Bridge Motion states (dkt. 157, p.2:3-8) that the debtor hired a "controller" after the petition date. The debtor apparently had not used a controller in the ordinary course of her businesses prepetition, because she admits (dkt. 157, p.2:9-17) that "in most cases" her "books and records were either non- existent, or rudimentary" and the controller is in the process of retroactively creating books and records from "source materials." Id.
It is true that usually a debtor engaged in business can hire regular employees, who may include controllers, bookkeepers, and the like, without having to seek authorization under 11 U.S.C. 327 or 363(b)(1). Likewise, if a debtor has used a non-employee tax accountant prepetition, it may be permissible to continue using that accountant postpetition without court authorization if the work is not central to the bankruptcy process but instead is part of the "ordinary course" operations of the debtor.
But this case does not appear to be anything like those situations. Mr. Garrison is a certified public accountant who was hired for his present tasks postpetition, and he does not appear to be an officer or employee of one or more of the debtor's businesses or the debtor herself. See dkt. 157, pp.
13-14 (Garrison decl.). Rather, he appears to be an accountant who is retroactively creating books and records for use in this bankruptcy case, and who fits the classic definition of a professional whose employment must be authorized under 11 U.S.C. 327. See, e.g., In re That’s Entertainment Mktg. Group, Inc., 168 B.R. 226, 230 (N.D. Cal. 1994) (professional person is one who plays "an intimate role in the reorganization of a debtor's estate") (citations omitted).
The fact that Mr. Garrison's employment was not authorized is particularly troubling because none of the usual safeguards have been applied to assure that his employment is consistent with the best interests of the estate. Such safeguards are especially important when the person at issue has been hired to go through the debtor's "source documents" and retroactively create books and records. There is too much opportunity for
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whitewashing or other mischief when charged with such an important task.
Normal safeguards would include disclosing any "connections" with all parties in interest, providing evidence of qualifications, and proving that the proposed professional is disinterested and does not hold or represent any interest adverse to the bankruptcy estate. See 11 U.S.C. 101(14), 327(a) and Rule 2014 (Fed. R. Bankr. P.). Mr. Garrison's declaration does none of these things, except to declare that he has done "some work related to the Debtor's sole proprietorship businesses ...," which raises concerns about whether he is sufficiently independent, whether he was still owed anything for his prepetition services when he was hired postpetition by the debtor (without authorization), and whether he otherwise meets the standards for retaining professionals.
Dkt. 157, p.13, para.5.
The tentative ruling is to set a deadline of 5/14/18 for the debtor and Mr. Garrison to file and serve declarations stating under oath all "connections" within the scope of Rule 2014, together with a motion for authority to employ Mr. Garrison (both retroactively and prospectively) under both section 327(a) and 363(b), to the extent that each may be applicable, and set that motion for hearing concurrent with the continued status conference.
Chilling the market? As noted above, the debtor concedes that most of the books and records with respect to her businesses are "either non-existent, or rudimentary," and her newly-hired controller is still in the process of attempting to construct books and records (dkt. 157, p.2:9-17).
Yet the debtor states that "Ms. Haro [Urbanlime] has been informally shopping the three Cliff's entities for months" (dkt. 157, p.4:5-6) and has been "test[ing] the market" for her businesses (dkt. 157, p.5:18-24).
Normally, in this Court's experience, a buyer of a business requires reliable historical books and records, or else will impose a steep discount. Has the debtor used appropriate business judgment in marketing the businesses already? Has the market been chilled, and the estate harmed?
The tentative ruling is to set a deadline of 5/14/18 for the debtor and Ms. Haro to file and serve their declarations addressing those things.
Employment of Urbanlime. The debtor has filed a separate motion to employ Urbanlime, not just for Bridge but for GJV, Inc. and the Cliff's Edge-related LLCs as well (dkt. 93, the "Urbanlime Motion"). That motion does not cite any section of the Bankruptcy Code, so it is unclear if
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Urbanlime's retention is sought to be approved under 11 U.S.C. 363(b) (as part of the use of the debtor's interest in Bridge out of the ordinary course) or under 11 U.S.C. 327 and/or 328 (retention of professionals).
The Committee supports that application (dkt. 142). That application nevertheless implicates the following issues.
First, this Court notes that Pierre Casanova, who is a 50% member with the debtor of the Cliff's Edge-related LLCs, has objected to Urbanlime's retention, but he takes no position with respect to Urbanlime's services involving Bridge or GJV, Inc. provided that the other LLCs' funds are not used to compensate Urbanlime. See dkt. 133, p.5, n.1. The tentative ruling is that any compensation to Urbanlime must come solely from proceeds of the transaction at issue, not from any other source.
Second, the Bridge Motion asserts that the application to hire Urbanlime "is probably not necessary" (dkt. 112, p.5:2), at least with respect to Bridge, because the sale, allegedly, is by the business not by the debtor herself. That assertion is not adequately supported.
For one thing, it is unclear whether the business purchase agreement (dkt. 112, Ex.1) is signed by the debtor in her personal capacity as well as on behalf of the business. Typed below her signature is "Dana Hollister/Bridge Tavern LLC." Dkt. 112, Ex.1, para. 46.
For another thing, the listing agreement with Urbanlime is also ambiguous. Its signature line (dkt. 93, Ex. C, at p.27) reads, "Clients: Dana Hollister, Pierre Casanova," which suggests that they are hiring Urbanline in their individual capacities. It is true that the listing agreement is signed solely by the debtor (not Mr. Casanova), and she uses the title "President" - i.e., perhaps she is purporting to sign as the managing member (colloquially, "President") of the LLCs? But Mr. Casanova objects that the debtor had no authority to sign the listing agreement, either for him or for the Cliff's Edge- related LLCs. See dkt. 133, 134, 177. Cf. dkt. 157, p.5:1-5 (debtor's reply, still ambiguous). In sum, it is ambiguous in what capacity the debtor has signed the listing agreement, and therefore whether Urbanlime is being hired by the estate or by Bridge.
For all of these reasons, the ambiguous documentation suggests that Urbanlime may be representing the debtor/estate, not just Bridge. That may be a problem because Urbanlime discloses that it might act as broker for both the buyer and the seller (it is unclear whether it has in fact done so) and the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) give
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notice such dual agency is disapproved for persons hired by the estate (due to actual and potential conflicts of interest).
Alternatively, even if Urbanlime is not being hired by the debtor/estate directly, the tentative ruling is that it would be inappropriate to authorize a transaction out of the ordinary course under 11 U.S.C. 363(b) that had the effect of authorizing the retention of a professional by Bridge, whose goal should be to maximize the sale price, when that professional also represents a buyer whose interest is to minimize the sale price (among other terms of any purchase and sale). In other words, whether Urbanlime's retention is included within the Bridge Motion (11 U.S.C. 363(b)) or the Unrbanlime Application (11 U.S.C. 327, 328 and/or 363(b)), the tentative ruling is that if Urbanlime is hired it cannot engage in dual agency: it must arrange for a separate agent for the buyer.
That is potentially a serious problem. As noted above, the Villain's Tavern business has been reopened, and it is not clear who is running it. If the sale of the Bridge business and leasehold has already effectively occurred, it is questionable whether it will be possible to "unscramble the eggs" and arrange for the seller (the debtor/estate) and the buyer to have representation that is truly independent.
The tentative ruling is to set a deadline of 5/14/18 for the debtor to file and serve declarations by the debtor and Ms. Haro addressing those things. Those declarations must include all "connections" within the scope of Rule 2014.
Lack of notice to, or authorization by, Mr. Casanova. Mr. Casanova asserts, and the debtor does not deny, that she cannot act for the Cliff's Edge-related LLCs without his consent. But rather than serve him with papers in this bankruptcy case, the debtor has served the LLCs at her own address. See dkt. 133, 134, 177. Cf. dkt. 157.
The debtor argues that there is no harm to Mr. Casanova because he ended up finding out about the proposed transactions, and he can withhold his consent if he chooses. See dkt. 157. The debtor ignores the fact that, by not serving Mr. Casanova properly, she has misused the bankruptcy process. She also ignores the fact that, by already marketing the Cliff's Edge-related LLCs when she lacked the right to sell them, she may have promised prospective buyers what she cannot deliver and thereby chilled the bidding for any future marketing and sale.
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Conclusion as to Bridge and Urbanlime. The tentative ruling is also to deny the Urbanlime Motion with respect to the Cliff's Edge- related entities. If the foregoing concerns in sections (1)(c)(i)-(vi) are adequately addressed, the tentative ruling is (A) to grant the Bridge Motion and (B) grant the Urbanlime Motion solely with respect to Bridge and GJV, Inc. But first the appropriate declarations must be filed, and the tentative ruling is to continue the Bridge Motion and the Urbanlime Motion to the same date and time as the continued status conference, with any supplemental oppositions and replies due at the usual time prior to the hearing (under the Local Bankruptcy Rules).
Other employment applications. The tentative ruling is that, given the lack of sufficient information about the assets and liabilities of the bankruptcy estate, and the prospects of success in the appeal of the debtor's principal nonbankruptcy litigation, the employment applications must be continued to the same date and time as the continued status conference, with an extension of the prior interim authorization. The parties should be prepared to address, however, whether it is appropriate to grant any of the applications on a final basis, or conversely to impose other requirements before any such final approval.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: The tentative ruling is that the debtor's bar date motion sets a bar date that is too soon after service of any notice to creditors; and in addition as stated in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov), the debtor is directed not to use the local form of notice. Rather, this Court will issue an order setting a bar date and directing the debtor to serve a copy of that order.
Plan/Disclosure Statement*: TBD
Continued status conference: see above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/7/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/3/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The only issue this Court intends to address is a continued hearing date in view of the last-minute papers that were filed, to fit the parties' and this Court's own needs.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear.
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash flow and cash collateral motion (dkt. 5, 14, 15, 29). This Court's written order (dkt. 29) erroneously lists the continued hearing as 3/20/18 instead of 4/17/18 at 2:00 p.m., as orally ordered at the hearing on
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3/9/18. Nevertheless, it is appropriate in connection with this Status Conference to address the debtor's current and projected cash flow and related issues.
This Court was not persuaded at the hearing on 3/9/18 that the debtor can generate positive cash flow. The debtor is directed to provide a brief update on any plans to generate positive cash flow from her various businesses and properties. It is also appropriate for other parties in interest to address whether there has been adequate disclosure to date regarding the finances of those businesses and properties. The debtor is cautioned that the declaration due on 3/27/18 must provide comprehensive disclosures regarding those businesses and properties: if the debtor cannot show reasonable prospects for positive cash flow within a reasonable time then this Court might have to grant relief from the automatic stay (upon a proper motion), or convert or dismiss this bankruptcy case, at least if the debtor does not abandon unprofitable businesses or properties.
Employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt. 9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure), including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why were resumes for associates, paralegals, and persons who are "of counsel" to the firm not included? (ii) Has counsel waived or amended the provisions in the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined
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in the parties' papers)?
Proposed special counsel: the Snyder firm (dkt. 36, 37). (i) What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
(ii) What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 4/17/18 at 2:00 p.m., status report due 4/3/18. (see order, dkt. 30).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/9/18:
[no tentative ruling was posted for this hearing]
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 4/17/18 fr. 5/3/18
Docket 68
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 5/3/18
Docket 9
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 3/20/18, 4/17/18 fr. 5/3/18
Docket 20
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 3/20/18, 4/17/18 fr. 5/3/18
Docket 18
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
For 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
For 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 5/3/18
Docket 5
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Attorney at Law as Special Counsel fr. 5/3/18
Docket 103
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 5/3/18
Docket 98
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 5/3/18
Docket 93
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
10:00 AM
PARAMOUNT RESIDENTIAL MORTGAGE GROUP
vs DEBTOR
Docket 57
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Viridiana Gutierrez Represented By William G Cort
Movant(s):
Paramount Residential Mortgage Represented By
Jason A Savlov Jason C Kolbe Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
U.S. BANK TRUST, NA vs
DEBTOR
Docket 27
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy
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case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Herrera Pro Se
Joint Debtor(s):
Anais Cabrera Pro Se
Movant(s):
U.S. Bank Trust, N.A. as Trustee for Represented By
Cassandra J Richey
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [UD] DYLAN COOPER PAUTSCH MYERS, LLC
vs
DEBTOR
Docket 35
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Juan Herrera Pro Se
Joint Debtor(s):
Anais Cabrera Pro Se
Movant(s):
Dylan Cooper Pautsch Myers LLC Represented By
Laurie Howell
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 9
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws
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governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Salcido Pro Se
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no
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automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jeff Moore III Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LALM ENTERPRISES, LLC
vs DEBTOR
Docket 8
Grant in part and continue in part to 5/22/18 at 10:00 a.m. as set forth below. Appearances are not required on 5/8/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling. Although Movant served the motion on the entity that executed the documents through which the movant asserts its
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interest in the property (sometimes referred to in the mortgage context as the "original borrower"), Movant did not serve the original borrower in compliance with Rule 7004(b)(3), which requires service on a corporation to be to the attention of an officer or agent. See LBR 4001-1(a) (1) and (c)(1)(B), 9014 (b).
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hector A Figueroa Sr Pro Se
Movant(s):
LALM Enterprises, LLC, a Represented By Edward T Weber
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NISSAN MOTOR ACCEPTANCE CORP
vs DEBTOR
Docket 33
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) & (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Denita Renee Morse Represented By Matthew D Resnik
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [NA] REGAL BUILDINGS, INC.
vs
DEBTOR
Docket 7
Grant in part and continue in part to 5/22/18 at 10:00 a.m. as set forth below. Appearances are not required on 5/8/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Use of incorrect form. This court notes that Movant used the relief from stay form for non-bankruptcy actions, but the non-bankruptcy action at issue is an unlawful detainer proceeding, for which there is a different form. This Court's forms are tailored to the particular matter at issue, and in general use of the wrong form may lead to errors and requires additional work for this Court.
The tentative ruling is to excuse the use of the wrong form in this instance, with the caution that if the wrong form is used in future (without a sufficient explanation why the normal form is inadequate) it may lead to denial or delay of the requested relief.
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In addition, based on the unrebutted assertions in the motion that the debtor is neither a signatory of the lease nor an occupant of the leased premises (dkt. 7, pp. 4, 7, 9 & supporting exhibits), it does not appear that there is any basis to assert that 11 U.S.C. 362(a) applies.
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In the alternative and in addition, this court grants relief from the
automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the commercial lease agreement(s). Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: (a) Chul Won Oh aka Young Hye Hong, (b) Hye Young Oh, and (c) O Dae San, Inc. (which must be served "Attn: Officer" or the like, per Rule 7004(b)(3), Fed. R. Bankr. P.). See motion (dkt. 7) at p.10.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided
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by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jin Hwan Oh Pro Se
Movant(s):
Regal Buildings, Inc., a CA Corp Represented By
Kathleen P March
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 11
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rachel Cervantes Carrillo Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 68
Tentative Ruling for 5/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the last hearing, this court continued the matter at the parties' request to allow time to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dominick Rolland Atkins Represented By Matthew D Resnik
S Renee Sawyer Blume
Movant(s):
Ditech Financial LLC Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 47
Debtor(s):
Dorothy L. Cole Represented By Matthew D Resnik
Movant(s):
Wells Fargo Bank, National Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 58
Tentative Ruling for 5/8/18:
Appearances required.
At the hearing on 3/20/18, this Court continued the matter to this date and directed (1) debtor to commence making higher payments to Movant in the amount of $4,079.99 ($3,698.51 P&I + $381.48 escrow); and (2) set deadlines for (a) Movant to file a supplemental declaration regarding recalculation of the appropriate monthly escrow fund payment, and (b) debtor to file a response.
This Court has reviewed Movant's supplemental declaration (dkt. 68) and debtor's response (dkt. 72). The parties should be prepared to address whether they have reached any resolution regarding debtor's contention that Movant has not taken into account any credits received from hazard insurance and county taxes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
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Grant in part, deny in part, and continue to 4/10/17 at 10:00 a.m., all as set forth below. Appearances required.
Background
The parties appear to agree that the debtor has made monthly payments of $3,698.51 (the normal amortizing principal and interest payments). Those payments were due on the first day of each month, and generally were paid a few days later. See dkt. 8, Ex.5 (movant's spreadsheet) and dkt. 61, Ex.A, & dkt. 62) (debtor's copies of cashier checks). The motion lists some late charges, attorney fees, and other items (dkt. 58, p.7, para.8), but those do not appear to have been included in the movant's spreadsheet (dkt. 58, Ex.5, at PDF pp.30-33), perhaps because the listed amounts are for prepetition periods. In any event, the core of the parties' disagreement appears to involve an escrow impound account to pay real estate taxes and property insurance premiums.
The debtor's assertions of "improper" escrow impounds are unpersuasive The debtor's declaration (dkt. 61, Tribelsky Decl., para.9, at PDF
p.7:24-28) asserts that the impound is "improper" and that the debtor has "struggled with [movant] Wells Fargo to have them end these impounds." The debtor also declares (dkt. 61, at PDF p.7:16-22) that there was an "improper increase" in monthly payments starting on March 1, 2016, which he believes was due to an escrow impound for taxes and insurance.
The debtor fails to explain why there is anything "improper" about requiring him to pay into an escrow for real estate taxes and insurance. The loan documents (dkt. 8, Ex.1, para.3, pp.4-5) require the debtor to make escrow payments for taxes and insurance premiums on the same date at the payments of principal and interest.
It is true that the movant apparently had not required escrow payments for some unspecified period prior to March 1, 2016. See Notice of Mortgage Payment Change (Official Form 410S1) (the "Change Notice"), filed 1/19/16 on the Claims Register, at PDF pp.5-6 (requiring monthly payments of
$351.96 commencing March 1, 2016). But if the debtor is asserting some sort of waiver that argument is unpersuasive. The Deed of Trust provides (dkt. 58, Ex.1, para.3, pp.4-5) that although the movant may waive the escrow requirement, the movant "may revoke the waiver as to any or all Escrow Items at any time" and then the debtor "shall pay" all escrow amounts.
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The debtor apparently just ignored his obligation to pay escrow
impound amounts. Instead he has presented evidence (dkt. 61, Ex.B, at PDF pp.38 et seq.) that he paid taxes directly to the tax authorities and insurance premiums directly to the insurers.
It appears that the movant must have credited the debtor's direct payments of taxes and insurance, because its Change Notice filed on 10/18/16 lists a low estimated "Starting balance" of $861.27 as of December 2016 (although that apparently assumes that the debtor would start making his required escrow payments). In any event, the movant''s Change Notice is prima facie evidence of the validity of this underlying calculation in support of its claim, and the debtor has not established that there is anything wrong with the movant's accounting included in its Change Notice filed on 10/18/16.
Similarly, by the time of the next Change Notice it appears that the movant must have once again credited the debtor's direct payments of taxes and insurance because, the escrow account projections ("Part 3") project a required "Starting balance" for March 2018 of only $762.96 (although, again, this appears to assume that the debtor will have made certain payments into the escrow account by the start of March 2018). In any event, the debtor has not shown that there is anything wrong with this supporting underlying documentation of the movant's claim.
Despite the deficiencies in the debtor's arguments and evidence, it appears that the motion itself fails to account for the debtor's direct payments of real estate taxes and insurance
The motion asserts (dkt. 58, p.9, para.12.c.) that the debtor was behind three payments of $4,053.45, for a total of $12,160.35, less a suspense account balance of $1,166.12, for a total of $10,994.23 as of approximately 12/12/18 (when the declaration in support of the motion was signed). But unlike the Change Notices the motion does not appear to give the debtor credit for direct payments of real estate taxes and insurance.
Based on the spreadsheet attached to the motion as Exhibit 5 (dkt. 58, at PDF pp.30-33), the alleged shortfall of $10,994.23 appears to be the cumulative sum of all the shortfalls between the $3,698.51 that the debtor was paying each month (the normal amortizing principal and interest payments) and the higher monthly amounts that he should have been paying in order to fund the escrow account. There are no entries in the spreadsheet that appear to reflect the debtor's direct payments of taxes and insurance.
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Nor is it possible to rely on the latest Change Notice to determine
precisely what the debtor owes. At first glance that Change Notice would appear to have current information because it was filed on 3/5/18, but it provides only a projected shortfall of $762.96 in the escrow account as of March 2018 (3/5/18 Charge Notice at PDF p.6, Part 3, end of first line). That projection probably is too low, because it appears to assume that part of the debtor's monthly payment is credited to the escrow account in January of 2018, and that the debtor will make some very substantial payments in February and March of 2018, and that the real estate taxes that are due in March of 2018 will be paid out of those escrow payments (see id., Part 4, 2d and 5th columns, rows for January, February, and March, including credits of
$1,281.90, $9,810.75, and $354.94, and debit of $1,612.38).
The bottom line is that although the movant has not established precisely what the debtor owes, it has established cause for some sort of relief from the automatic stay - namely, there is "cause" within the meaning of 11 U.S.C. 362(d)(1) in that the debtor has failed for many months to comply with his obligations to fund the escrow account, which exposes the movant to the risk that it will have to bear the cost if the debtor fails to pay real estate taxes or insurance (especially if the property were to be damaged or completely burn down). The required adequate protection is for the debtor to cure the deficiency in the escrow account over a reasonable period of time.
The latest Change Notice (filed 3/5/18) can be used as a starting point. It requires that the debtor pay $381.48 per month into the escrow account, in addition to his regular monthly payments of $3,698.51 on account of principal and interest, for total monthly payments of $4,079.99. The escrow payments may have to be adjusted (as noted above, the Change Notice appears to assume that the debtor will have made some very substantial payments by the start of March 2018), but this Court can set a schedule for such adjustment (see below).
Conclusion
The tentative ruling is to set a deadline of 4/1/18 for the debtor (a) to file evidence that he has paid the March 2018 real estate tax payment directly to the taxing authority and (b) to commence making monthly payments of
$381.48 into the escrow account, in addition to his regular monthly payments of $3,698.51 on account of principal and interest, for total monthly payments of $4,079.99.
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In addition, the tentative ruling is to set a deadline of 4/1/18 for the
movant to file a supplemental declaration showing a calculation of the required escrow balance as of 5/1/18, the required monthly payments for the debtor to cure the deficiency in that escrow balance, and the resulting new total monthly payment that the debtor will have to pay on 5/1/18 and each month thereafter.
Finally, the tentative ruling is to set a continued hearing at the date and time set forth at the start of this tentative ruling, so that the parties and this Court can address what to do if the debtor disputes the movant's calculations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Boaz Tribelsky Represented By Michael F Chekian
Movant(s):
U.S. Bank National Association, as Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK NA
vs DEBTOR
Docket 68
Tentative Ruling for 5/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the last hearing, this court continued the matter at Movant's request to allow time to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
10:00 AM
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lenda Ruth Potts Represented By William G Cort
Movant(s):
Wells Fargo Bank N.A. Represented By Yadira P Delgado Rachelle M Ellis Jessica L Carter
Deborah L Rothschild Melissa Phipps Kristin C Rawlings Rosemary Allen Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 38
Debtor(s):
Ho Seong Yoo Represented By Stephen S Smyth William J Smyth
Joint Debtor(s):
Mi Young Yoo Represented By Stephen S Smyth William J Smyth
Movant(s):
Ditech Financial LLC fka Green Represented By
Darlene C Vigil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USAvs DEBTOR
Docket 31
Debtor(s):
Dedrick Gates Represented By Thomas B Ure
Movant(s):
HSBC Bank USA, National Represented By Merdaud Jafarnia John Chandler
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 34
Debtor(s):
Rodney Dean McKinney Represented By Kevin T Simon
Movant(s):
U.S. Bank National Association Represented By Jenelle C Arnold Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
REVERSE MORTGAGE SOLUTIONS, INC.
vs DEBTOR
Docket 49
Tentative Ruling for 5/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 4/10/18 hearing, this court continued the matter at the parties' request for more time to reach a resolution. There is no tentative ruling, but the parties should be prepared to apprise this court of any developments.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it
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has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ana Rosa Silva Represented By George J Paukert
Movant(s):
REVERSE MORTGAGE Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 22
Tentative Ruling for 5/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 4/10/18 hearing, this court continued the matter at the parties' request for more time to negotiate the terms of an adequate protection agreement.
There is no tentative ruling, but the parties should be prepared to address the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Grant in part and deny in part as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
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Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Deny the request for relief pursuant to 11 U.S.C. 362(d)(4) because there is no showing that the unauthorized transfer by interspousal deed approximately two years prior to this bankruptcy case was part of a scheme to hinder, delay, or defraud creditors.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Astrid H. Estrada Represented By William G Cort
Movant(s):
Wilmington Savings Fund Society, Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
11:00 AM
Application for fees and expenses [John J. Menchaca, Chapter 7 Trustee]
Docket 115
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Artemio Saucedo Carranza Represented By Luis G Torres
Trustee(s):
John J Menchaca (TR) Represented By Helen R Frazer
11:00 AM
Docket 112
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Artemio Saucedo Carranza Represented By Luis G Torres
Trustee(s):
John J Menchaca (TR) Represented By Helen R Frazer
11:00 AM
Docket 114
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Artemio Saucedo Carranza Represented By Luis G Torres
Trustee(s):
John J Menchaca (TR) Represented By Helen R Frazer
11:00 AM
Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
(2) Turnover Under 11 U.S.C. § 542
Docket 1
- NONE LISTED -
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Luis A Solorzano
Giovanni Orantes
11:00 AM
Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
(2) Claim and Delivery; (3) Conversion; (4) Breach of Guaranty;
(5) Fraud; (6) Preliminary Injunction; and (7) Constructive Trust
Docket 1
- NONE LISTED -
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Pro Se
George Tyler Fower Pro Se Siemens Medical Solutions USA Inc Pro Se
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
11:00 AM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18
Docket 1
Tentative Ruling for 5/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This Court has reviewed the parties' joint status report (dkt. 35).
Mediation. The parties' latest status report requests mediation. See adv. dkt. 35, p.3, section E.3. This request is puzzling.
At the 2/27/18 status conference, this Court set a deadline of 3/13/18 for the parties to lodge a proposed mediation order, which was later memorialized in a written order (adv. dkt. 33, 1st ordering paragraph adopting attached tentative ruling for 2/27/18, para. "(2)"). No such proposed mediation order was ever lodged with this Court. This is not the first time that the have ignored this Court's order regarding mediation (see tentative ruling for 2/27/18, para. "(1)," reproduced below).
The tentative ruling is to sanction both counsel $200 for repeatedly disregarding this Court's orders regarding mediation, and to set yet another deadline - 5/15/18 - for the parties to lodge a mediation order. The parties are cautioned that continued disregard of this Court's orders will result in more serious sanctions and/or other consequences.
Deadlines: This adversary proceeding has been pending since 4/7/17. This Court previously has set deadlines (adv. dkt. 29, exhibit, adopting tentative ruling for 1/30/18, para. "(2)"): e.g., a discovery cutoff of 5/1/18. The parties appear to have ignored those deadlines.
Their latest status report states (adv. dkt. 35, p.2, section B.3.) that they both expect to complete discovery by "July, 2018," i.e., after the
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discovery 5/1/18 cutoff. The parties' discovery schedule also appears to be incompatible with this Court's order regarding the 6/26/18 deadline for dispositive motions to be heard. See adv. dkt. 29.
Neither party has requested an extension of the deadlines previously ordered by this Court (either formally, by motion, or even informally in the status report). In setting deadlines this Court has attempted to apply a careful analysis of the parties' legal theories and factual allegations, the parties' status reports, this Court's available hearing dates, how much time might be needed for mediation, and other matters. Disregarding this Court's orders requires additional work by this Court to re-determine deadlines and/or address the consequences of missed deadlines.
The tentative ruling is to sanction both counsel $100 for ignoring this Court's previously ordered deadlines (with a caution, again, that continued disregard of this Court's orders may lead to greater adverse consequences). The tentative ruling is also to set a deadline of 5/15/18 for the parties to lodge a proposed agreed order setting realistic, binding new deadlines. Finally, the tentative ruling is to set a continued status conference for 5/22/18 at 11:00 a.m., the sole anticipated purpose of which will be to address whether the parties have complied with this Court's latest directions (set forth above) and, if not, to address what sanctions to impose. The parties are directed not to file any status report in advance of that status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 5/8/18 at 11:00 a.m. with a brief status report due 4/24/18. Appearances are not required on 2/27/18.
Background. This adversary proceeding has been pending since 4/7/17, and is being jointly administered with Adv. No. 2:17-ap-01551 - all papers are to be filed in this adversary proceeding (adv. dkt. 26). The discovery cutoff
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and some other deadlines have been set, but no trial date or pretrial conference date has yet been set (adv. dkt. 29). Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 29). This Court previously ordered mediation (adv. dkt. 17) but at the status conference on 12/19/17 the parties reported that they had failed to comply with that order and the parties' latest status report (adv. dkt. 31) requests that they ordered to mediation again.
Mediation. The tentative ruling is to set a deadline of 3/13/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required. The court has reviewed the parties' joint status report (adv. dkt. 24) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (docket number(s) 22, and at the hearing on 12/19/17).
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18
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Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/13/18
Continued status conference: 2/27/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Trial date and pre-trial schedule: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the status of this adversary proceeding.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 12) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties
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do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/6/17. Expert(s) - deadline for reports: 11/20/17
Expert(s) - discovery cutoff (if different from above): 12/4/17 Dispositive motions to be heard no later than: 1/25/2018 Joint Status Report: 12/5/17
Continued status conference: 12/19/17 at 11:00 a.m. Trial date and pre-trial schedule: To be set at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By
11:00 AM
Robert S Altagen Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C Vanderhoof
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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fr. 3/3/15, 3/31/15, 4/28/15, 5/26/15, 6/9/15, 7/7/15, 07/28/15, 9/1/15, 9/22/15, 11/17/15, 12/15/15,
1/19/16, 2/23/16, 3/22/16, 5/31/16, 7/19/16, 9/27/16,
11/29/16, 1/10/17, 4/25/17, 6/20/17, 10/17/17, 1/30/18,
4/10/18
Docket 9
Tentative Ruling for 5/8/18:
Continue to 6/8/18 at 1:00 p.m. Appearances are not required on 5/8/18.
This Court has reviewed the debtor's status report (dkt. 313), notice of pending sale for the Broadway property (dkt. 314), and latest monthly operating report (dkt. 312). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 1:00 p.m. Appearances are not required on 4/10/18.
This court has reviewed the debtor's status report (dkt. 311) and monthly operating reports (dkt. 309, 310), and this court is not aware of other issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's status report (dkt. 304) and the notice (dkt. 307) filed by Bayview Loan Servicing, LLC ("Bayview"). The parties should be prepared to address the issues raised by those papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's post-confirmation status report (dkt. 298) and has no issues to raise sua sponte at this time. The tentative ruling is to continue this status conference to 1/30/18 at 1:00 p.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
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Continue to 10/17/17 at 1:00 p.m. in view of the debtors' status report (dkt. 292). Appearances are not required on 6/20/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/25/17:
Continue to 6/20/17 at 2:00 p.m., to provide the debtors with time to seek entry of a final decree in this case, or such other remedies as may be necessary or appropriate, in view of the confirmed Joint Chapter 11 Plan (dkt. 270) and the unopposed motions to approve the compromise with Butler Capital (dkt. 277-80). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
Tentative Ruling for 1/10/17:
Continue to 4/25/17 at 2:00 p.m. Appearances are not required on 1/10/17.
Reasons: This court has issued its order confirming the debtors' Joint Chapter 11 Plan (dkt. 270) and this court is not aware of other issues that would warrant a status conference at this time.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
Tentative Ruling for 1/10/17:
Continue to 4/25/17 at 2:00 p.m. Appearances are not required on 1/10/17.
Reasons: This court has issued its order confirming the debtors' Joint Chapter 11 Plan (dkt. 270) and this court is not aware of other issues that would warrant a status conference at this time.
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The tentative ruling, subject to any objections at the hearing and further subject to consideration of whether re-balloting is required, is to provide the debtors with one final opportunity to correct the issues set forth below with the disclosure statement (dkt. 250) and the debtors’ proposed plan (dkt. 249). The principal documents reviewed by this Court are the plan, disclosure statement, and supporting documents (dkt. 249-254), Butler Capital’s objection (dkt. 256), and the debtors’ reply (dkt. 257).
Sequence of property sales.
The sequence of property sales in Exhibit H of the Disclosure Statement is not clear. Do the properties have to sell in a particular order? Are the debtors obligated to sell whatever they can as soon as they can and/or in whatever sequence and combinations will maximize value and/or speed? The tentative ruling is that the debtors must clarify Exhibit H either to demonstrate the correct order of sale or that the plan does not require sale in a particular order.
Escrow Deadlines.
From this Court’s review of the amended Exhibit H, it appears that the debtors intend to have one year from the projected effective date of December 1, 2016 in which to open escrow, and if any properties that meet that condition later fall out of escrow, the debtors have sixty days to open a new escrow, with an outside period of 18 months from December 1, 2016 (or earlier, if an escrow is opened earlier) in which all escrows must close.
However, the way that this is written in the plan is difficult to understand. Particularly, Exhibit H, pp. 4:25-5:1, is unclear, especially because the projected effective date of the plan is not listed until Exhibit H, Page 10. The
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tentative ruling is that the debtors must revise the language in the plan to clarify these provisions.
Provisions for relief from default.
The sentence on p.5:14-19 regarding relief from default remains confusing. Is default exclusively tied to proceeds given to Bayview? Can other parties declare default? The tentative ruling is that these provisions must be revised to be written in "plain" english to better reflect the debtors' intention.
"Good cause" for relief from default.
The sentences on p.6:10-14 regarding the standard for cause for relief from default are confusing. The debtors list as a possible standard the same standard that would apply to a debtor showing adequate protection in defending against a motion for relief from the automatic stay, but then they state that alternative standards may be proposed by the parties or the Court, if the Court deems some other standard more reasonable under the circumstances. How would this court make that determination? The tentative ruling is that the debtors must clarify these provisions so they may be more equitable to creditors.
Feasibility of interest payments.
In its Tentative Ruling for 9/27/16, this Court addressed the issue of the feasibility of the debtors’ proposed interest payments to Bayview (Exhibit H, p.7:14-16) without some sort of cash infusion at the beginning of the plan. Exhibit H does not appear to have been explicitly amended to address the Court’s concerns. The tentative ruling is that the plan must be amended to provide for a cash infusion, and to make the failure to provide such infusion, or failure of the debtors immediately to provide evidence of that infusion, an event of default. In addition, the parties should be prepared to address whether Exhibit H should include an explanation of Butler Capital’s treatment under the plan, in light of Butler Capital’s objection to confirmation (dkt. 256), and the debtors’ reply (dkt. 257).
In addition, the debtors should be prepared to address the status of the proposed sale of the Foasberg Dry Cleaning business and whether, after payment of creditors to that business have been paid, the proceeds will constitute an adequate cash infusion to support the proposed interest payments.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
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Bar date: 4/20/15 (timely served per dkt. 40)
Plan: The tentative ruling is to set a deadline of 12/13/16 for the debtor to lodge proposed orders approving the disclosure statement and confirming the plan and to file and serve on Bayview, the Receiver (for Hilma Foasberg), and the debtors' equity holders (i) notices of lodgment, (ii) an amended plan as set forth above (with any additional changes ordered at the hearing) and (iii) a redline showing the changes. If those documents appear accurately to reflect this court's rulings and otherwise to be acceptable, and if there are no objections to those changes by 12/20/16, then this court intends to issue orders approving the disclosure statement and confirming the
plan. Otherwise, this court intends to hold a telephonic hearing.
Continued status conference: 1/10/16 at 2:00 p.m. No written status report is required. (This likely will be continued for 60 days or so if the plan is confirmed.)
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 9/27/16
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The tentative ruling is to approve the disclosure statement (dkt. 228) and confirm the debtors' proposed plan (dkt. 227) if and only if the debtors make the following modifications/interlineations and can provide a cash infusion or other sufficient evidence of feasibility as set forth below. The principal documents reviewed by this court are the plan, disclosure statement, supporting documents (dkt. 229-231), Bayview's objections (dkt. 240), the ballot summary (dkt. 242), the debtors' reply (dkt. 243), and Mr. Foasberg's supplemental declaration (dkt. 244).
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Explicit incorporation of Exhibit H into the plan
The tentative ruling is that either Exhibit H itself, or the plan, or the
order confirming the plan, or all three, must make it explicit that Exhibit H is incorported into the plan (although it is only attached to the disclosure statement). That appears to be the intent of the plan, if not its actual terms, because it references Ex.H and vice versa, but this should be more explicit.
"Hard" dates for the close of escrow
The debtors' current proposed plan adopts the previously ordered deadlines that for each property the debtors must be in escrow one year after confirmation (dkt. 228, Ex.H, p.4:24-25), and close escrow 18 months after escrow is entered (id., p.5:26-28), and also proposes (i) that they have 60 days from the failure of any escrow to re-open an escrow if they find a new buyer (id., p.5:2-4) and, apparently, (ii) that each new escrow opens a new 18 month period (id., p. 5:26-28). The tentative ruling is that the former condition meets the standards for cramdown (fair and equitable etc.) but the latter does not.
The tentative ruling is further that the debtors could cure this problem by expressly providing two things. First, the 18 month period would run from the first date when any escrow is opened as to a given property (or, for any escrow that is pending on the Effective Date, 18 months from the Effective Date). Second, to prevent possible evasion of the deadlines, sales would need to be all cash at closing (no deferred payments; no transfers of equity in lieu of cash; etc.).
Confusing additional preconditions to any default
The debtor apparently seeks to impose an additional precondition (dkt.
228, Ex.H, p.5:12-25, the "Additional Precondition") that before a party in interest may send a notice of default it must show that the payment of its claim is actually threatened after taking into account the likely proceeds from whatever properties actually are in escrow. First, as Bayview points out, this appears to place an undue burden on creditors.
Second, the Additional Precondition appears to be unnecessary because the debtors have an alternate remedy. If the debtor is actually able to pay creditors from the pending sales of other properties, and those sales are sufficiently likely to occur quickly, then the debtor can argue as much in its motion for relief from default (dkt. 228, Ex.H, pp. 5:28-6:6, the "Relief From Default Provisions").
Accordingly the tentative ruling is that the Additional Preconditions are
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not fair and equitable and must be struck from the plan.
Relief from default
The debtor has presented evidence regarding the difficulty of selling the properties, due in large part to environmental issues. Based on that evidence, it is difficult to tell in advance, for example, (i) what defaults could reflect a lack of diligence by the debtor, as opposed to genuine obstacles to closing due to environmental issues, or (ii) whether the debtor is unreasonably seeking to eliminate all possible environmental issues instead of selling at a moderate discount to a buyer who is willing to address some such issues. In other words, there may be good reasons for the debtor to be able to seek relief from default, but it is difficult if not impossible to know in advance, so the debtor appears to have proposed a reasonable mechanism to place this issue before this court, subject to the familiar standards for relief from the automatic stay.
Bayview has not presented contrary evidence or a suitable alternative mechanism for dealing with these issues. Accordingly, the tentative ruling is that the Relief From Default Provisions are fair and equitable and otherwise satisfy the requirements for confirmation under the circumstances.
Reinstatement
The debtors do not disagree with Bayview's proposed language: that "any [currently pending] foreclosure [proceedings with respect to] the subject properties will be rescinded" as opposed to stating that the loans will no longer be in default. The tentative ruling is that the plan must be amended to make this change (see dkt. 228, Exhibit H, p. 6, dkt. 240, p.12:5-8, dkt. 243, p. 8:10-12).
Interest payments
The debtors' plan proposes to make monthly interest-only payments of
$5,963.41 and $3,794.45 to Bayview until it is paid in full from the sale of the real properties (dkt. 228, Ex. H, p.7:2-4). This raises two issues: (i) whether the proposed rate of interest is appropriate and (ii) whether the proposed payments are feasible (11 U.S.C. 1129(a)(11)).
Appropriate interest rate
The debtors have proposed interest rates of 7.5% (dkt. 228, Ex.H, p.7:2-4). This is somewhat higher than the rates in the existing promissory notes (dkt. 243, pp.8:28-9:4).
As stated in Judge Bason's posted procedures,
Judge Bason has expressed the view in various cases that when
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dealing with relatively small dollar amounts (for which the cost of
presenting expert testimony as to interest rates would be prohibitive) the analysis in Till v. SCS Credit Corp., 541 U.S. 465 (2004), is appropriate, and conversely when dealing with larger dollar amounts the Till analysis probably is not appropriate, and one acceptable method for experts to opine as to the appropriate interest rate is the method described in In re Boulders on the River, Inc., 164 B.R. 99 (9th Cir. BAP 1994); see In re N. Valley Mall, LLC, 432 B.R. 825 (Bankr. C.D. Cal. 2010) (discussing continued viability of Boulders on the River).
In this case it does not appear to be cost-effective for either party to incur the expense of expert testimony as to interest rates (i.e., the type of expert testimony addressed in Boulders on the River and N. Valley Mall). In any event neither party has chosen to do so. So the tentative ruling is to apply the Till analysis or something comparable.
Under that analysis, courts typically apply an interest rate of 1% to 3% over prime, although the starting point might be different (higher) in situations such as this when the properties have environmental issues, so this court also looks to the contract rate used by the parties. This court also takes into consideration that payment to Bayview has been much delayed, and the debtors are proposing interest-only payments (as opposed to amortizing payments), but on the other hand Bayview's claims are protected by a large equity cushion, and national interest rates are near historic lows.
Under the foregoing analysis the debtors have made a sufficient prima facie showing that their proposed interest rates are within the range of what is permissible. Bayview has not rebutted that showing. Therefore the tentative ruling is to approve the proposed interest rates.
Feasibility
The supplemental declaration of Mr. Foasberg indicates that he intends to sell the dry cleaning businesses that have been failing to pay rent to the debtors for several months (dkt. 244, p. 2). The problem is that it is not at all clear how the debtors intend to make plan payments prior to the sale of the business given their recent performance, i.e., lack of feasibility (11 U.S.C. 1129(a)(11)). Their MOR for August (dkt. 241, p. 21), states that they only hold unrestricted cash of $2,044.28.
It appears that the debtors will need a cash infusion if this court is to
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make a finding of feasibility. In addition, testimony will be needed (or at least an offer of proof subject to cross-examination) to support the debtors' assertion that any given dollar amount is adequate to show feasibility.
To the extent that this or any other issue requires testimony, this court may accept an offer of proof or brief testimony at today's hearing, or may set a continued hearing for the presentation of evidence and cross-examination. The parties should be prepared to address timing and procedures.
The tentative ruling is that the plan must be amended to provide for such a cash infusion, and to make the failure to provide such infusion, or failure of the debtors immediately to provide evidence of that infusion, an event of default.
Preservation of net revenues/"set aside" for possible environmenal remediation
The plan apparently contemplates that if the debtors have their projected cash flow then most net revenues would be used to fund a "set aside" each month for possible environmental remediation of their properties estimated at $5,000 per month per debtor. The tentative ruling is that for the plan to be fair and equitable (and otherwise meet the standards for confirmation) any such funds must be subject to the following conditions.
First, they must be actually paid: if the debtors make any expenditures out of the ordinary course of business, except to fund such a set aside or pay for environmental remediation, then it seems that must be a default under the plan for the plan to be fair and equitable. Second, if the debtors fail to provide monthly accounting of such funds, including a bank account statement, then that would have to be a default under the plan for it to be fair and equitable.
Form of confirmation order
The tentative ruling is that, pursuant to LBR 3020-1(b) the confirmation order shall include the following:
Within 120 days of the entry of this order, the debtors shall file a status report explaining what progress has been made toward consummation of the confirmed plan of reorganization. The initial report shall be served on the United States trustee, the 20 largest unsecured creditors, and those parties who have requested special notice. Further reports shall be filed every 120 days thereafter and served on the same entities, unless otherwise ordered by the court. A postconfirmation status conference will be held on January 17, 2017 at 2:00 p.m.
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If this case is converted to one under chapter 7, the property of the reorganized debtor shall be revested in the chapter 7 estate.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan: The tentative ruling is to set a deadline of 10/4/16 for the debtor to lodge proposed orders approving the disclosure statement and confirming the plan and to file and serve on Bayview, the Receiver (for Hilma Foasberg), and the debtors' equity holders (i) notices of lodgment, (ii) an amended plan as set forth above (with any additional changes ordered at the hearing) and (iii) a redline showing the changes. If those documents appear accurately to reflect this court's rulings and otherwise to be acceptable, and if there are no objections to those changes by 10/11/16, then this court intends to issue orders approving the disclosure statement and confirming the plan. Otherwise, this court intends to hold a telephonic hearing.
Continued status conference: 10/18/16 at 2:00 p.m. No written status report is required. (This likely will be continued for 60 days or so if the plan is confirmed.)
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/27/16
This court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 7/19/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Background
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These cases were filed in January of 2015. The debtors have filed
several proposed plans and disclosure statements, the latest of which are dated 6/21/16 (dkt. 217, 218).
They blame the lack of a confirmed plan of reorganization on the fact that they own several parcels of real estate that may require extensive environmental remediation, and therefore are difficult to sell. The primary outstanding issue in this case is whether their proposed joint plan must provide for a more expedited sales process than the one they have proposed.
That is primarily a confirmation issue (under, e.g., 11 U.S.C. 1129(a)(3) (good faith), (a)(11) (feasibility), and, to the extent "cramdown" is required, (b)
(no unfair discrimination, and being fair and equitable, with respect to each impaired, non-consenting class)). Typically, however, the bankruptcy courts consider prior to any confirmation hearing whether a plan is so deficient on its face that sending it out for voting is not worth the resulting expense, delay, and potential confusion.
In addition, the disclosure statement must contain "adequate information" under 11 U.S.C. 1125(a). Again, that is generally an issue for a later stage - the disclosure statement hearing - but bankruptcy courts often address as a preliminary matter whether the disclosure statement is so deficient that no such hearing should be set. That is particularly important given Judge Bason's practice of setting combined hearings on the disclosure statement and plan confirmation. Therefore it is appropriate to address at this stage, initially, whether the debtor has adequately disclosed the potential environmental issues and analyzed the nature of possible remediation, possible approaches that could maximize the sale proceeds balanced against expediting the time for sale, etc.
At the status conference on 5/31/16 this Bankruptcy Court established procedures for the parties to address these issues on a preliminary basis - to determine whether to authorize the debtor to mail a voting package to creditors. The debtors have filed the declaration of their real estate broker Mr. O'Healy (dkt. 220). No other parties in interest have filed any contrary evidence, although creditor Bayview Loan Servicing, LLC ("Bayview") has filed an "opposition" to the proposed joint plan (dkt. 222), which includes an objection to Mr. O'Healy's declaration. The debtors have filed a reply (dkt.
223).
Tentative Rulings
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The tentative rulings are as follows, taking into account the
amendments that the debtors propose in their reply (dkt. 223) (and solely for the limited purpose described above - i.e., for authorizing the debtor to mail its voting package - and without prejudice to objections at the combinded hearing on adequacy of the disclosure statement and whether to confirm the proposed joint plan):
Evidence: Overrule the objections to Mr. O'Healy's
declaration.
Timing: Overrule Bayview's objection as to the timing of the
sales, except that the timing must be clarified regarding how long escrow can be open before it can be said to have "fail[ed] to close" (dkt. 218-7, Disclosure Statement p.39:3, which is Ex.H at 5:3); and how long the debtors would after any new escrow were to open before it too would have failed to close. On the present record, this Bankruptcy Court is not persuaded that the "drop dead" dates proposed by Bayview are essential, and that the voting package should not be sent. The debtors argue, with supporting evidence, that "[i]f Bayview were to foreclose, it would face the same problems facing Debtors because the hurdles to selling these properties would not be eliminated if someone else were to sell them." (Dkt. 223, p.6:10-12.)
The foregoing should not be interpreted as a ruling for confirmation purposes. It may be necessary or appropriate, in order to confirm any plan, to establish either "drop dead" dates or some mechanism to assess whether the debtors have been dragging their feet and whether it is fair and equitable to grant additional time to engage in the sale process.
Default terms: Sustain Bayview's objections regarding the proposed default terms, because of the difficulty (if not impossibility) that Bayview would have in filing a declaration under penalty of perjury as to the debtors' funds and the status of the debtors' sales. The parties should be prepared to address alternative default terms.
Reinstatement of loans: Overrule Bayview's objections regarding the reinstatement of its loans.
Other issues: The debtors' Exhibit H is needlessly repetitive (this Court will review the details orally at the hearing). In addition, the parties appear to assume that the automatic stay will continue to apply (see, e.g., dkt. 218-7, Disclosure Statement p.89:9, which is Ex.H at 5:9) but the "boilerplate" language in the plan provides for property to revest in the reorganized debtors on the Effective Date (dkt. 217, p.5, part IV.B.) which
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generally terminates the automatic stay (11 U.S.C. 362(c)(1)). If the debtors intend to provide for the automatic stay to continue (either by eliminating revesting, or by some other means) then they must disclose that clearly, and establish that they legally can do so.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan (dkt.217)/Disclosure Statement (dkt. 218): This court anticipates setting the following deadlines: 7/26/16 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference; 7/29/16 for the plan proponent to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; 9/27/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 9/27/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/19/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/31/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
These cases have been pending since 1/23/15 - a very long time. This Court has reviewed the debtor's (belated) status report (dkt. 213). The parties should be prepared to address the outline of a plan proposed by the
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debtor and any associated deadlines.
Deadlines/dates. This case was filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: See above
Continued status conference: 9/6/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/22/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. On 3/22/16, this court continued this matter to allow the debtors and Bayview (the primary secured creditor) to negotiate agreeable terms. The parties should be prepared to address whether they have resolved their dispute or, if not, how they intend to proceed.
Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: Subject to the foregoing issues: 4/6/16 deadline for the plan proponent to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; and 5/31/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 5/31/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/23/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 193) and disclosure statement (dkt. 194) (and redline, dkt. 195). The debtors now propose a one year deadline after the effective date to have the subject properties "under contract and in escrow" (see, e.g., dkt. 194-7, p. 6:1-6). Is this agreeable to Bayview Loan Servicing, LLC? Are all major constituencies in agreement regarding the amended plan? Are there any other issues that need to be resolved prior to setting a date for a hearing on approval of the disclosure statement and confirmation of the plan?
Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: Subject to the foregoing issues: 3/2/16 deadline for the plan proponent to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; and 4/26/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 4/26/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 1/19/16:
Appearances required but telephonic appearances are encouraged if
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advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Progress toward confirmation. At the 11/17/15 status conference, the debtors stated that they would file an amended, red-lined version of their plan and disclosure statement correcting certain issues. When do the debtors anticipate filing these?
Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement (dkt. 174, 175): The parties should be prepared to discuss the debtors' exit strategy and deadlines for any further sale motions and/or an amended plan and amended disclosure statement.
Continued status conference: 2/23/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/19/16:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
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FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 48
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
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Docket 1
Tentative Ruling for 5/8/18:
Appearances required by counsel for the debtors but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Joint Plan/ Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 176, 177, 178). At the status conference this Court will address numerous issues with these documents.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Joint Plan/Disclosure Statement* (dkt. 176, 177): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 48). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Fresco Adversary Proceeding (adv. case no. 2:17-ap-01558-NB), including motion to remand (adv. dkt. 8). The tentative ruling is that this matter will be mooted, assuming that this Court approves the parties' proposed settlement, and therefore this matter should go off calendar. The parties are reminded to file appropriate papers to have this matter dismissed once the settlement is fully implemented.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a
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later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders
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on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to
2:00 PM
conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
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Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
2:00 PM
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
2:00 PM
FRESCO INTERNATIONAL CORPORATION
vs DEBTOR
Docket 57
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Movant(s):
Tsuneo Hisanaga Represented By Carol Chow
Fresco International Corporation Represented By
Carol Chow
2:00 PM
Docket 1
Tentative Ruling for 5/8/18:
Appearances required.
Current issues.
Joint Plan/Joint Disclosure Statement (dkt. 165, 166).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 167). are substantially identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 176, 177, 178. For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 5/8/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Joint Plan/Disclosure Statement* (dkt. 166, 167): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 57). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
2:00 PM
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
2:00 PM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing
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the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
2:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status
2:00 PM
report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status
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conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
Docket 1
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse Robert M Aronson Nicholas W Gebelt
2:00 PM
Adv#: 2:17-01558 Sakurai et al v. Fresco International Corporation et al
fr. 1/23/18, 1/30/18, 02/13/18, 4/10/18
Docket 8
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Fresco International Corporation Represented By
Carol Chow
Toshico Yamaguchi Pro Se
Tsuneo Hisenaga Represented By Carol Chow
Defense Labor Aero, Corporation Pro Se
Movant(s):
Fresco International Corporation Represented By
Carol Chow
Tsuneo Hisenaga Represented By Carol Chow
Plaintiff(s):
Yuichiro Sakurai Represented By Joseph R Cruse
2:00 PM
Robert M Aronson Nicholas W Gebelt
2:00 PM
Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
fr. 4/9/18, 4/10/18
Docket 10
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 8, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 2:00 p.m. for the reasons stated on the record on 4/9/18. Appearances are not required on 4/10/18.
Tentative Ruling for 4/9/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether this court should grant Checkmate's request for an expedited hearing and issue an order granting a temporary restraining order and order the immediate turnover of the Collateral pursuant to Checkmate's claim and delivery action.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By
2:00 PM
Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Pro Se
George Tyler Fower Pro Se Siemens Medical Solutions USA Inc Pro Se
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
(2) Claim and Delivery; (3) Conversion; (4) Breach of Guaranty;
(5) Fraud; (6) Preliminary Injunction; and (7) Constructive Trust
Docket 1
The tentative ruling is to continue all pending matters in this adversary proceeding to 6/12/18 at 2:00 p.m. for the reason stated below, with a brief joint status report due 5/29/18, and with a deadline of 5/7/18 for the plaintiff to file and serve a notice of continuances attaching and incorporating by reference the deadlines in this tentative ruling (assuming that this Court is not persuaded to depart from this tentative ruling). Appearances are not required on 5/8/18.
Current Issues. This Court has reviewed the parties' status reports (adv. dkt. 24 & 26) and the other filed documents and records in this adversary proceeding.
Motion for TRO & Claim and Delivery (adv. dkt. 10). At the 4/9/18 hearing on this motion, counsel for plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") apprised this Court of the bankruptcy filings of defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA) and requested a continuance of this hearing to allow time to obtain orders granting relief from stay with annulment. In the Joint status report (adv. dkt. 24), Checkmate states that the hearings on the relief from stay motions are scheduled for 5/15/18. Accordingly, the tentative ruling is to continue this motion to the date and time set forth at the start of this tentative ruling.
Siemens Motion to Dismiss (adv. dkt. 27, the "MTD"). Defendant Siemens Medical Solutions USA, Inc. ("Siemens") has properly self- calendared its MTD for 6/12/18 at 11:00 a.m. Siemens anticipates that it may be voluntarily dismissed by plaintiff (see adv. dkt. 24), but if that does not
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occur then this Court anticipates that the MTD may take 15 minutes or more to hear. This Court's practice is that matters anticipated to take 15 minutes or more are heard on the 2:00 p.m. calendar (not available for self-calendaring, except by permission of this Court). Therefore the tentative ruling is to re- calendar the MTD from 11:00 a.m. to 2:00 p.m., which is concurrent with the other matters in this adversary proceeding that are on today's calendar.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Pro Se
George Tyler Fower Pro Se Siemens Medical Solutions USA Inc Pro Se
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
INGRID ALIET-GASS
vs DEBTOR
Docket 130
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Movant(s):
Ingrid Aliet-Gass Pro Se
2:00 PM
1/23/18, 02/13/18, 03/06/18, 4/17/18
Docket 1
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
2:00 PM
Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
Docket 7
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Represented By
Kevin P VanLandingham
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Luis A Solorzano
Giovanni Orantes
2:00 PM
Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
(2) Turnover Under 11 U.S.C. § 542
Docket 1
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Luis A Solorzano
Giovanni Orantes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 157
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
DOES 1 through 10, inclusive Pro Se
David Smushkevich Pro Se
2:00 PM
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Paul Guiller Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 156
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
DOES 1 through 10, inclusive Pro Se
David Smushkevich Pro Se
2:00 PM
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Paul Guiller Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
Docket 155
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
DOES 1 through 10, inclusive Pro Se
David Smushkevich Pro Se
2:00 PM
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Paul Guiller Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
fr. 02/13/18, 03/06/18, 4/17/18
Docket 125
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 7, 4/17/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
2:00 PM
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
David Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
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Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
3) Interfering with Economic Relationship; 4) Slander of Title;
5) Quiet Title; 6) Declaratory Relief
fr. 8/22/17, 11/14/17, 1/23/18, 02/13/18, 03/06/18, 4/17/18
Docket 1
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 7, 4/17/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 8, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 11/14/17:
Appearances required. The tentative ruling is to deny the motions for default judgments, without prejudice, for the reasons set forth below, and to set a continued status conference for 1/30/18 at 2:00 p.m.
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On the one hand, there appears to be successful prosecution of this adversary proceeding because, according to the plaintiff's status report (adv. dkt. 92), all of the defendants have either agreed to the requested declaratory relief or have defaulted. On the other hand, there are some fundamental issues that appear to prevent this court from granting default judgments at this time.
Self-calendaring error. The motions for default judgments were only served on 10/27/17. See, e.g., Motion for Default Judgment Derek Wilshee (dkt. 83, 74) (collectively, the "Wilshee Default Motion"). That is insufficient time prior to the hearing, under the applicable rules, nor was there any cover notice of the hearing date and deadline for any opposition or response.
Jurisdictional issues.
Personal jurisdiction. Does the complaint adequately establish personal jurisdiction over each defendant? At least one defendant is alleged to be a resident of Australia (dkt. 1, para. 14), although the plaintiff has voluntarily dismissed claims against that defendant (dkt. 107). Are each of the defaulting defendants subject to personal jurisdiction?
Subject matter jurisdiction, and abstention. The complaint and motions for default judgment make somewhat vague assertions of other action(s) that were or are pending in other courts apparently involving the same subject matter, and involving at least preliminary injunctive relief if not other relief. Can this Bankruptcy Court assume jurisdiction over matters that are pending in other courts? Must or should this Bankruptcy Court abstain?
Allegations of wrongdoing. Where is the analysis tying each of the defaulting defendants to one or more of the specific acts of wrongdoing bringing them within the claims in the complaint? For example, the only allegation in the complaint regarding Mr. Wilshee (dkt. 1, para. 14) appears to be that he was at one time an officer of the debtor. How is that an act of wrongdoing?
The Wilshee Default Motion seeks a default judgment against Mr.
Wilshee of $431,472,300.00 (dkt. 74, at PDF p.51 of 53). How is he responsible for such alleged damages? Does the complaint need to be amended to establish, as against one or more of the defaulting defendants,
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how they are alleged to be liable?
Calculation of damages. An exhibit to the plaintiff's motions for default judgments asserts that "Based on Department of Conservation Records [available on a website and/or verified by whom?], these leases [which leases? the ones that allegedly were supposed to be assigned but were not?] were producing 1730 barrels of Oil a day [when?]" and "[w]ith today's technology [how is today's technology better?], a conservative figure would be 3500 barrels a day [based on whose expert opinion?] that will be used as a figure for all the losses caused by Western States International [how about other defendants?]." Dkt. 83, Ex.A, at PDF p.17 of 53. The same exhibit shows a calculation of alleged damages based on "Approx Production" of "105,000" which is far more than 3500 barrels (perhaps using a 30-day presumptive month multiplied by 3500 barrels a day?), an "Average Oil Price [from what source?]," and a "Cost [to extract, market, refine, deliver, and sell the oil - or some other or different set of things? based on what expert's opinion?]." Based on the foregoing questions, and applying Rule 55(b)(2) (Fed. R. Civ. P.) (incorporated by Rule 7055, Fed. R. Bankr. P.), it appears that additional evidence and a "prove up" hearing will be needed to determine the amount of damages, if not other issues.
Alleged costs, attorney fees, and interest. The debtor/plaintiff asserts $1 million in costs (dkt. 74 at PDF p.51 of 53) - how is that possible? What are the components? Attorney fees are alleged to be $300,000 - this case has barely commenced, so how is that possible? Where are the daily time sheets and/or other support for this figure? Prejudgment interest is alleged to be at a 10% rate per year starting 1/1/11. What is the contractual or statutory basis for that interest rate and that commencement date? The purported damages were incurred month by month, so how can interest run from before those damages were incurred?
Declaratory relief. The plaintiff makes broad allegations about the rights under various contracts, or arising from breaches of those contracts or by operation of law. Where is the support for these allegations? The plaintiff cannot place the burden on this court to sort through numerous provisions of various contracts to piece together the plaintiff's theory. The plaintiff must provide specific, easy-to-follow analysis and evidence.
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Conclusion. Because the motions for default judgments are both procedurally and substantively deficient in all of the ways set forth above, the tentative ruling is to deny them without prejudice.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. This court notes that the parties were directed to file a joint status report two weeks in advance of this hearing (dkt. 2), but have not done so. In addition, this court notes that the tentative ruling in the main case status conference (calendar no. 3, 8/22/17 at 2:00 p.m.) is to dismiss the main case, which normally would terminate this adversary proceeding.
Nevertheless, to preserve all rights in the event that this court were to be persuaded not to dismiss the main case, this court has reviewed the other filed documents and records in this adversary proceeding and issues the following tentative ruling.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent);
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In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 6/19/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 1/12/18 Expert(s) - deadline for reports: 1/26/18
Expert(s) - discovery cutoff (if different from above): 2/9/18 Dispositive motions to be heard no later than: 3/2/18
Joint Status Report: 11/28/17
Continued status conference: 12/12/17 at 11:00 a.m. Trial deadlines to be determined at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
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Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
DOES 1 through 10, inclusive Pro Se
David Smushkevich Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Paul Guiller Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
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Mediation
Docket 0
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FEDERAL NATIONAL MORTGAGE ASSOCIATION
vs DEBTOR(S)
Docket 65
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 75).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carlos Roberto Calderon Represented By Tamar Terzian
Joint Debtor(s):
Rosalva Calderon Represented By James T King Tamar Terzian
Movant(s):
Federal National Mortgage Represented By
Andrew David Goldberg
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Trustee(s):
Lisa B Singer Renee M Parker
Kathy A Dockery (TR) Pro Se
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WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 27
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Connie Magic Hall Represented By Stuart R Simone
Movant(s):
Wells Fargo Bank, N.A. Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
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SUNTRUST MORTGAGE, INC.
vs DEBTOR
Docket 15
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Abtin Temijani Tashakori Represented By David H Chung
Joint Debtor(s):
Jana Tashakori Represented By David H Chung
Movant(s):
SunTrust Mortgage, Inc. Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
David M Goodrich (TR) Pro Se
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OCWEN LOAN SERVICING, LLC
vs DEBTOR
Docket 292
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Movant(s):
OCWEN LOAN SERVICING, LLC Represented By
Shreena Augustin Sean C Ferry
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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BENTLEY SQUARE CONDO ASSOCIATION
vs DEBTOR
Docket 17
Grant in part and deny in part as set forth below. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Service
The tentative ruling is to reject the Debtor's argument (dkt. 19, p.2:14-25) that service was not proper. The Debtor does not appear to
dispute being served at the P.O. Box that is the Debtor's address of record in this bankruptcy case. There is no support for the argument that the movant was somehow supposed to serve the Debtor at a street address instead.
Alternatively, supposing for the sake of discussion that there were anything improper about service (which the debtor has not established), the debtor has not argued that there was any prejudice. The Debtor's attorney was served; the debtor has actual notice; and the Debtor has not established that any purpose other than delay would be accomplished by continuing this hearing to redo service. The desire for delay is not a sufficient ground to oppose the motion.
Adequate protection and related issues
The tentative ruling is to grant the motion under 11 U.S.C. 362(d)(1) in the form of requiring the Debtor to provide the following adequate protection:
the Debtor must pay all postpetition monthly assessments and late charges to the movant homeowners association ("HOA") immediately, (ii) the Debtor must stay current in HOA assessments postpetition, and (iii) the Debtor must
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pay the HOA's reasonable postpetition attorney fees incurred to date over the next four months pursuant to an adequate protection order ("APO") with only one opportunity to cure any further defaults.
Any co-debtor stay (11 U.S.C. 1301(c)) would be subject to the same modification and conditions, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a).
The analysis is complex.
Postpetition amounts owed
The motion asserts (dkt. 17 at PDF p.16:15-18 & Ex.4) that the Debtor owes at least $3,841.36 in postpetition assessments, by which the movant homeowners association ("HOA") apparently means assessments, late charges, attorney fees, and interest. The HOA appears to argue that this is the minimum it must be paid to adequately protect its interest within the meaning of 11 U.S.C. 362(d)(1).
The details of the HOA's alleged postpetition claim are murky. The bankruptcy petition was filed on 2/13/18. Confusingly, Ex.4 to the motion (dkt. 17, Ex.4, last page, at PDF p.60) lists a "Beginning balance" as of 1/1/18 of
$596.06, but 1/1/18 is prepetition so it cannot count toward postpetition obligations.
The actual postpetition debts appear to be as follows. The next to last page of Ex.4 shows an assessment of $254.00 on 2/15/18 and a late charge of $27.27 the same day (dkt.17, Ex.4, at PDF p.58), which this Court calculates as a total of $281.27. Presumably the same charges apply for March and will apply for April of 2018 because the Debtor's papers do not suggest that the debtor has made or will make any payments until the hearing, so the Debtor will owe 3 x $281.27 = $843.81 for these items.
The Debtor does not appear to dispute that postpetition monthly dues and late charges must be paid in order to adequately protect the HOA's interest. See 11 U.S.C. 361 & 362(d)(1). The areas of dispute appear to be attorney fees and interest.
The motion papers $3,000 for legal fees on 4/5/18 and list $3.30 for "Interest of 1.25% [per month?]" on 4/16/18. Dkt. 17, Ex.4, last page, at PDF
p.60. The attorney fees appear to be an estimate (without supporting timesheets), based on the HOA counsel's rate of $350/hr. See dkt. 17 at PDF p.27:23.
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No secured claim for attorney fees or interest
The Debtor's opposition argues (dkt. 19, p.3:1-11) that the HOA cannot charge attorney fees and interest because the claim is undersecured, according to the Debtor's bankruptcy schedules. The debtor cites no legal authority for this argument, but presumably the debtor is relying on two things. First, 11 U.S.C. 506(b), and second, the fact that the condominium is a rental property (the condo is in Pennsylvania and the debtor is here in California) so it is not the debtor's "principal residence" and therefore the HOA's claim can be bifurcated into a secured claim and an unsecured deficiency claim. See id. and compare 11 U.S.C. 1322(b)(2) and Nobelman v. Am. Sav. Bank, 508 U.S. 324 (1993).
As of the preparation of this tentative ruling the reply deadline has passed and the HOA has not disputed the debtor's assertion that its claim is underwater. The debtor's bankruptcy schedules value the debtor's condominium at $45,000 and list two liens against it: (i) $21,274 owed to the City of Philadelphia for a "State [sic] tax lien" (i.e., a real estate tax lien?) and
$23,272 owed to the HOA. See Schedule D (dkt. 1 at PDF p.19). The HOA asserts that its prepetition claim is approximately $31,129.23 (dkt. 17 at PDF p.25:2-3). Therefore, assuming that tax liens are senior (invariably they are), and assuming that the debtor's valuation of the condo is not way off, the debtor is correct that the HOA's claim is not oversecured and therefore its secured claim cannot include attorney fees and interest under 11 U.S.C. 506(b).
Allegedly nondischargeable unsecured claim
A different analysis applies to the HOA's unsecured claim. True, an unsecured claim for postpetition interest must be disallowed pursuant to 11
U.S.C. 502(b)(2). But what about attorney fees?
The HOA points to 11 U.S.C. 523(a)(16), under which a debtor ordinarily cannot discharge "a fee or assessment that becomes due and payable after [the petition date] to [an HOA] ...." (Emphasis added.) The parties have not addressed whether a "fee" only means late fees and the like, but for purposes of this tentative ruling this Court assumes that a "fee" includes attorney fees and interest that can be charged to the Debtor under nonbankruptcy law and the parties' contracts.
In any event, for purposes of the HOA's motion for relief from the automatic stay, the HOA's point appears to be that its right to receive current
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payments from the debtor is not being adequately protected if the debtor is not paying his nondischargeable postpetition obligations to the HOA. But the analysis is not that simple because the parties have not fully addressed whether the attorney fees actually are dischargeable.
The HOA relies on In re Foster, 435 B.R. 650 (9th Cir. BAP 2010).
Foster held that "as a matter of law, debtor's personal liability for HOA dues continues postpetition as long as he maintains his legal, equitable or possessory interest in the property and is unaffected by his discharge." Id. at 661 (emphasis added). But as discussed in Foster the statutory analysis is complex.
On the one hand, section 523 only applies fully under chapters 7 and
11. Chapter 13 includes a "super-discharge" (11 U.S.C. 1328(a)) which does not expressly carve out debts under section 523(a)(16), and therefore one could argue that such debts are discharged.
On the other hand, Foster rejected that argument because (at least under Washington State law that applied in that case) HOA dues are an affirmative covenant that runs with the land and therefore are not "rooted in the pre-bankruptcy past" so as to be prepetition claims that are dischargeable. Foster, 435 B.R. 650, at 660-61 (citation and internal quotation marks omitted). In other words, Foster held that the postpetition HOA dues were nondischargeable, but not because of section 1328(a) - rather, Foster relied on the fact that the HOA dues at issue were postpetition debts.
A potential problem for the HOA in this case, to the extent is relies on nondischargeability, is that postpetition attorney fees generally are sufficiently forseeable that as of the petition date they constitute contingent claim. See Travelers Cas. & Sur. Co. v. Pacific Gas, 549 U.S. 443 (2007); In re SNTL Corp., 571 F.3d 826 (9th Cir. 2009). The parties have not addressed this issue, and this Court does not decide it but, to the extent the HOA relies on the alleged nondischargeable nature of the Debtor's obligation to pay its postpetition attorney fees, the HOA has not sufficiently established that this is so.
But that is not the end of the analysis.
Adequate protection includes a requirement to pay even dischargeable attorney fees for any period in which the Debtor retains the condo
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Assuming without deciding that the HOA's postpetition attorney fees
might be dischargeable, the Debtor's obligation to pay those fees is still both an in personam obligation and an in rem obligation that is the quid pro quo of continuing to own the condo. See Foster, 435 B.R. 650, 661 (noting both in personam and in rem aspects). The Debtor also has obligations as a chapter 13 debtor to stay current. See 11 U.S.C. 361, 362(d)(1), 1303 & 1304, and
28 U.S.C. 959(b).
The tentative ruling is that the HOA's interests in the condo cannot be adequately protected unless the Debtor pays its postpetition attorney fees. If the Debtor cannot pay those fees, the Debtor must surrender the condo.
To hold otherwise would effectively allow the Debtor to disregard with impunity the postpetition obligation to stay current. The HOA would have to incur more fees to enforce that obligation than it could recover. That would be inconsistent with Congress' intent, expressed in section 523(a)(16), that debtors in bankruptcy stay current with postpetition HOA obligations, rather than imposing the condo expenses on fellow condo owners. To borrow a phrase from Foster (albeit addressing the slightly different issue of monthly dues, but analogous to the attorney fee obligation in this case): "you stay, you pay." Id.
How soon the Debtor must pay
This Court has some discretion in fashioning a remedy, so long as that remedy adequately protects the HOA's interests - i.e., protects both its secured claim as of the petition date and its right to receive current payments of postpetition obligations. See 11 U.S.C. 361.
The tentative ruling is that the Debtor's long history of nonpayment prepetition, combined with the Debtor's failure to live up to the obligation to stay current postpetition, means that the HOA will not be adequately protected as to the postpetition arrears in monthly dues and late charges unless the Debtor pays those things immediately (at or before the hearing). As to the attorney fees, the tentative ruling is that (i) before a dollar amount can be fixed for those fees, the HOA must file a declaration with daily timeheets (with sufficient detail for a typical bankruptcy analysis of the reasonableness of those fees), and (ii) then a fourth month APO is appropriate.
Related issue
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The Debtor's incredibly spartan argument about lack of equity in the
property could be interpreted to include the Debtor's apparent intent to avoid the HOA's lien under 11 U.S.C. 522(f). See Plan, dkt. 2, p.11-12. But the HOA's lien is not a judicial lien, so section 522(f) does not appear to be applicable. Accordingly, to the extent (if any) that the Debtor is attempting to rely on section 522(f) to evade the requirement for adequate protection of the HOA's interests, that attempt is not persuasive.
Request for relief notwithstanding future bankruptcy cases ("in rem" relief)
The HOA requests that any relief ordered in this case continue to apply notwithstanding any future bankruptcy cases. The HOA has not asserted any of the statutory grounds for such relief: multiple bankruptcy cases affecting the condo, or unauthorized transfers of the condo, or a "scheme" to hinder, delay or defraud creditors (apart from the unexplained failures of the Debtor to pay condo fees, or the HOA to either collect those fees or obtain relief, for ten years). See 11 U.S.C. 362(d)(4).
This Court has been persuaded that, in some circumstances, similar relief is available beyond the particular confines of section 362(d)(4). But the HOA has not established that any such in rem relief should be granted because Movant has failed to include any analysis or evidence in support of such a finding. See In re Vazquez (Bankr. C.D. Cal., Case No. 2:16-
bk-10699-NB, dkt. 75) and In re Choong (Bankr. C.D. Cal., Case No. 2:14- bk-28378-NB, dkt. 31).
The HOA's request for an order that the automatic stay does not apply at all
The HOA requests an order that the automatic stay does not apply. Probably the HOA was just checking almost every box on this Court's form motion, but in any event it has not established an exception to the automatic stay under 11 U.S.C. 362(b) or (c) because it has failed to include any analysis or evidence in support of such a ruling.
Effective date of relief. The tentative ruling is to grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
Conclusion
The tentative ruling is that the Debtor must pay $843.81 at or before
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the hearing and enter into a stay-current APO with a four month obligation to repay attorney fees as set forth above. The tentative ruling is also to set a deadline of 5/29/18 for the HOA to file and serve its declaration with timesheets in support of its claim for postpetition attorney fees, a deadline of 6/5/18 for any response by the debtor, a deadline of 6/12/18 for any reply, and a continued hearing on 6/19/18 at 10:00 a.m. to address the dollar amount of attorney fees that the debtor will be required to pay over four months.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Farhad Alexander Alizadeh Represented By Kevin Tang
Movant(s):
Bentley Square Condominium Represented By Alyssa B Klausner
Trustee(s):
Kathy A Dockery (TR) Pro Se
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THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 27
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Maria Lourdes Perez Represented By Alon Darvish
Movant(s):
The Bank of New York Mellon fka Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 29
Debtor(s):
Deborah Elaine Knight Represented By Alon Darvish
Movant(s):
PennyMac Loan Services, LLC Represented By Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 41
Deny for the reasons stated in the debtor's response (dkt. 48). At this early stage of the case it is premature to conclude that the debtor cannot propose a plan of reorganization that has a reasonable possibility of being confirmed within a reasonable time. Appearances are not required.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's response (dkt. 48)
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
10:00 AM
Movant(s):
U.S. Bank National Association Represented By Cassandra J Richey
10:00 AM
NEW PENN FINANCIAL LLC
vs DEBTOR
Docket 22
Grant as provided below. Appearances are not required.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
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Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rosa M Lopez Pro Se
Movant(s):
New Penn Financial LLC d/b/a Represented By Nathan F Smith Christina J O
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378- NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws
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governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gina Almaraz Pro Se
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR(S)
Docket 52
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to the legal analysis in In re Vazquez
(case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14- bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no
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automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robert Garviria Pro Se
Joint Debtor(s):
Adriana Juarez Pro Se
Movant(s):
Bayview Loan Servicing, LLC, as Represented By
Edward G Schloss
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
HOMESTREET BANK
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
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possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eutimio Yerena Pro Se
Movant(s):
Homestreet Bank Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
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possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alesha Reese Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] NATIONSTAR MORTGAGE LLC
vs
DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re
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Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Woo Park Pro Se
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] WELLS FARGO BANK, N.A.
vs
DEBTOR
Docket 13
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. First, the evidence attached to the motion establishes by a preponderance of the evidence that the borrower under the loan documents died before the date on which she allegedly signed the grant deed transferring an interest to the debtor. No opposition was filed, let alone any persuasive evidence to the contrary. Accordingly, this Court is persuaded by the movant's argument that the grant deed is a sham, so no interest was transferred, which means that the automatic stay does not apply.
Second, and alternatively, this case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB,
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docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to the legal analysis in In re Vazquez
(case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14- bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dolores Yesenia Ramirez Pro Se
10:00 AM
Movant(s):
Wells Fargo Bank, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, N.A.
vs DEBTOR
Docket 9
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Luis Cordova Pro Se
Movant(s):
HSBC Bank USA, National Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] WILMINGTON SAVINGS FUND SOCIETY, FSB
vs
DEBTOR
Docket 19
Grant the request for judicial notice contained in the motion (dkt. 19 at PDF p.15), and grant the motion as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003). Relief notwithstanding future bankruptcy cases.
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Grant the following relief pursuant to the legal analysis in In re Vazquez
(case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14- bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jesus Torillo Pro Se
Movant(s):
WIlmington Savings Fund Society, Represented By
Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] CITIBANK, N.A.
vs
DEBTOR
Docket 58
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ion Henderson Represented By
Richard Mark Garber
Movant(s):
CITIBANK, N.A., as Trustee for Represented By
Jenelle C Arnold Jamie D Hanawalt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 59
- NONE LISTED -
Debtor(s):
Rosa Jerez Represented By
Rebecca Tomilowitz
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NPI DEBT FUND I, LP
vs DEBTOR
Docket 16
Grant the motion as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling to the order, thereby incorporating it as this court's final ruling. See LBR 9021-1(b) (1)(B).
Tentative findings of fact:
In violation of the loan documents, an interest in the subject property purportedly was transferred to the debtor, either individually or as trustee of a purported trust.
The transfer was part of a scheme to delay or hinder movant’s remedies against the property by implicating the automatic stay of 11 U.S.C. 362(a) in the debtor’s bankruptcy case.
This court does not find that the debtor was part of any such scheme (i.e., based on the record before this court it appears that this may be a so-called “hijacked” or "dumping" case in which a third party seeks to implicate the automatic stay for their own benefit, without the debtor’s participation or acquiescence, by transferring property into a random bankruptcy estate, or by back-dating or falsifying a grant deed to make it appear that such a transfer occurred).
Tentative conclusions of law:
Pursuant to the legal analysis in In re Vazquez (case no. 2:16-
bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
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Jurisdiction. This court has jurisdiction to grant the type of relief
requested in the motion.
Termination of stay. The automatic stay, if it applies, is terminated pursuant to 11 U.S.C. 362(d)(1), (d)(4), and 1301(c).
Relief notwithstanding future bankruptcy cases. If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. The 14 day stay under FRBP 4001(a)(3) is waived.
No prejudice to debtor intended. Nothing in the foregoing disposition should be interpreted to support the application of 11 U.S.C. 109(g)(2) in the event of any future dismissal of this bankruptcy case. See generally In re Leafty, 479 B.R. 545, 550 (9th Cir. BAP 2012); In re Payton, 481 B.R. 460 (Bankr. N.D. Ill. 2012).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Basil Ohakosin Pro Se
Movant(s):
NPI Debt Fund I, LP Represented By
10:00 AM
Trustee(s):
Brian R Nelson
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
U.S. BANK NATIONAL ASSOC. vs
DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003). Relief notwithstanding future bankruptcy cases.
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Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hyun Hwang Pro Se
Movant(s):
U.S. Bank National Association, as Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [UD]
CITYWIDE PROPERTY MANAGEMENT & CONSULTING INC.
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hyun Hwang Pro Se
Movant(s):
Citywide Property Management & Represented By
Joseph Cruz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DAIMLER TRUST
vs DEBTOR(S)
Docket 36
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Yoram Levi Represented By
Matthew D Resnik
Joint Debtor(s):
Sigal Lefkowitz Levi Represented By Matthew D Resnik
Movant(s):
Daimler Trust Represented By
Jennifer H Wang
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
SANTANDER CONSUMER USA INC.
vs DEBTOR
Docket 14
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Angel Fernando Paz Represented By
D Justin Harelik
Movant(s):
Santander Consumer USA Inc. dba Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 36
- NONE LISTED -
Debtor(s):
Xavier A Amaya Represented By Stephen S Smyth William J Smyth
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DAIMLER TRUST
vs DEBTOR
Docket 17
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Christian Azzinaro Represented By Eliza Ghanooni
Joint Debtor(s):
Octavia Dautartas Represented By Eliza Ghanooni
Movant(s):
Daimler Trust Represented By
Jennifer H Wang
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO.
vs DEBTOR
Docket 135
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Richard L. Totton Represented By Julie J Villalobos
Movant(s):
Deutsche Bank National Trust Represented By Asya Landa
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 9
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sonia Noemi Delgado Represented By Axel H Richter
Movant(s):
Sonia Noemi Delgado Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
VW CREDIT, INC.
vs DEBTOR
Docket 21
Debtor(s):
William Charles Arkwright Represented By Michael E Clark
Movant(s):
VW Credit, Inc., servicing agent for Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 144
Tentative Ruling for 5/22/18 (same as for 2/13/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the trustee should be prepared to address the status of the trustee's investigation into the alleged pre-petition transfer.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Continue to 2/13/17 at 10:00 a.m. Appearances are not required on 12/12/17.
Reasons for continuance
Insufficient Service
The proof of service filed in support of the motion does not reflect service on the debtor to the attention of the appropriate person(s), in
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accordance with Rules 4001 and 7004(b)(3) (incorporated by Rule 9014(b), Fed. R. Bankr. P.), and Local Bankruptcy Rule 4001-1(c)(1)(C)(i). Under Judge Bason's posted procedures (at www.cacb.uscourts.gov), he generally does not sua sponte require that specific individuals be named - service can be "Attn: Officer or Managing/General Agent" or a similar phrase - but in the circumstances of this case, in which there are disputes regarding who is or is not authorized to represent the debtor, Judge Bason will direct that service be
(i) on the debtor at its address of record "Attn: Philip Layfield, Officer of Record" and also, in a separate envelope, (ii) on the debtor at its address of record "Attn: Any Officer Other Than Philip Layfield."
Chapter 11 Trustee's Request for Extension
This court has reviewed the chapter 11 trustee's reponse (dkt. 152) to the motion, and movant's reply (dkt. 159). Given that this case is an involuntary case and the trustee has not had the benefit of any bankruptcy schedules, any statement of financial affairs, or access to the debtor's principals, this court is not persuaded by movant's argument that the trustee has already had sufficient time to investigate the alleged pre-petition transfer. In addition, the trustee has provided adequate evidence that the equity cushion and the relatively short delay provide adequate protection.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
10:00 AM
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 143
Tentative Ruling for 5/22/18:
Please see the tentative ruling for calendar no. 30, on the 10:00 a.m. calendar, 5/22/18.
Tentative Ruling for 2/13/18:
Please see the tentative ruling for calendar no. 26, on the 10:00 a.m. calendar, 2/13/18.
Tentative Ruling for 12/12/17:
Continue to 2/13/17 at 10:00 a.m. Appearances are not required on 12/12/17.
(Same reasons as for calendar no. 10, on the 10:00 a.m. calendar, 12/12/17.)
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
Trustee(s):
Richard Pachulski (TR) Represented By
10:00 AM
Malhar S Pagay James KT Hunter
10:00 AM
Docket 59
Tentative Ruling for 5/22/18:
Grant, on a final basis, the debtor's motion (dkt. 59) to vacate this Court's order (dkt. 57) that had granted relief from the automatic stay, subject to the following conditions for a standard adequate protection order ("APO") requiring the debtor to reimburse the creditor $4,537.47 over six months.
Appearances are not required.
Proposed order: The creditor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Documents reviewed. In addition to the papers filed in support and opposition to the motion prior to the hearing on 4/10/18, and this Court's interim order (dkt. 71), this Court has reviewed the declaration of debtor's counsel regarding the required interim payments (dkt. 72), the creditor's declaration regarding $4,542.01 in asserted fees and costs (dkt. 74), the debtor's objection thereto (dkt. 75), and the creditor's reply papers (dkt. 77, 78).
Analysis. Based on the foregoing, this Court concludes:
that the total of the "Post-petition Foreclosure activities" (dkt. 78, pp.2:24-3:5 & Ex.1) is $2,088.61 rather than the $2,093.15 asserted by the creditor, and that lower dollar amount is reasonable;
that the total of the fees and costs regarding the "motion for Relief From Automatic Stay" (dkt. 78, p.3:6-26) is $1,338.19 (as stated therein), and that dollar amount is reasonable;
that the total of the fees and costs regarding the "Opposition
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to Debtor's Motion to Vacate Order Terminating Automatic Stay" (dkt. 78, pp.3:27-4:22) is $1,110.67 (as stated in the creditor's earlier declaration, dkt. 74, para. 10), and that dollar amount is reasonable; and
that the total, reasonable dollar amount is $4,537.47 ($2,088.61 + $1,338.19 + $1,110.67 = $4,537.47).
In concluding that the foregoing dollar amounts are reasonable this
Court recognizes two potential deficiencies in the evidence presented by the creditor. First, as to attorney fees, the creditor has not provided contemporaneous daily timesheets broken down into tenths of an hour. But that is not the only measure of reasonableness. Based on this Court's extensive experience with fee applications this Court concludes that the flat fees included within the foregoing dollar amounts are well within the dollar amounts that normally would be charged for comparable services at an hourly rate.
Second, this Court recognizes that the creditor has not provided copies of receipts for such charges as the fee for recording the notice of sale (alleged to be $104.00) or the trustee fee (alleged to be $1,280.23). Receipts would have been preferable. Nevertheless, this Court has used its discretion to accept the creditor's evidence without requiring receipts for the following reasons.
Creditor's declaration (dkt. 78, para. 2) states that the asserted dollar amounts accurately reflect the books and records of the creditor. That satisfies FRE 803(6) (hearsay exception for records of regularly conducted activity).
Hearings on motions for relief from the automatic stay are intended to be summary nature. See, e.g., In re Johnson, 756 F.2d 738, 740-41 (9th Cir. 1985).
Further proceedings inevitably would cost the parties more than the dollar amounts at stake. Simply preparing a declaration attaching receipts likely would cost the creditor $150 to $200 or so, which is more than any realistic possible dollar amount that the debtor could object to. Then the debtor would have to reimburse the creditor for those fees plus the fees of the debtor's own counsel.
For all of these reasons, this Court is not requiring receipts. (This Court cautions the creditor that, in future, receipts may be required.)
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Finally, this Court is persuaded that the creditor appropriately incurred fees and costs in connection with a continuance of the foreclosure sale. It is true that the debtor mailed the required payments to the creditor soon after the prior hearing on 4/10/18, but the creditor had to receive and process those payments before it could rely on them and postpone the foreclosure sale, and in the circumstances this Court is persuaded that the creditor acted with reasonable speed in connection with that postponement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Grant on the following conditions: (a) the debtor must tender the $26,278.75 cashier's check (dkt. 65, Ex.A) at the hearing (or as otherwise directed by the creditor) and (b) the debtor must pay any additional shortfall and the creditor's attorney fees and other costs and expenses as set forth below. Appearances required.
Analysis: The tentative ruling is that (1) the debtor has established sufficient excuses both for his own neglect and for the neglect of his counsel, (2) the debtor has presented sufficient evidence of a substantial equity cushion that adequately protects the creditor, and (3) equitable considerations apply both to relief under Rule 9024 (Fed. R. Bankr. P.) and to adequate protection (11
U.S.C. 361 & 362(d)) and it would be inequitable to require the creditor essentially to make a forced loan by incurring attorney fees and other costs and expenses without being reimbursed within a reasonable time. Accordingly the tentatitive ruling is to set a continued hearing on 5/22/18 at 10:00 a.m. with a standard briefing schedule to determine the dollar amount that the debtor must reimburse as follows.
Specifically, the tentative ruling is to set a deadline of 4/24/18 for the creditor to file declaration(s) setting forth any shortfall in the debtor's cure payment plus its reasonable attorney fees and all other costs and expenses
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attributable to the debtor's delay in payment (late fees, foreclosure trustee's fees, etc.), with a deadline of 5/1/18 for any objection by the debtor to those dollar amounts, and a deadline of 5/8/18 for any reply. At the continued hearing this Court will resolve any disputes as to the total dollar amount, after which the debtor will be obligated to repay that dollar amount over six months pursuant to a standard adequate protection order.
Key documents reviewed (in addition to motion papers): the creditor's opposition (dkt. 63-64) and the debtor's reply (dkt. 65).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kwame Boakye Represented By William J Smyth Stephen S Smyth
Movant(s):
Kwame Boakye Represented By William J Smyth Stephen S Smyth
Trustee(s):
Kathy A Dockery (TR) Represented By William J Smyth
10:00 AM
LALM ENTERPRISES, LLC
vs DEBTOR
Docket 8
Tentative Ruling for 5/22/18:
Grant request for future in rem relief for the reasons stated below. Appearances are not required on 5/22/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reason: This matter was continued from 5/8/18 on shortened notice on the condition that Movant serve the motion and notice of this continued hearing on the original borrowers (Happy Yu) pursuant to Rule 7004(b)(3) by 5/9/18. On 5/9/18, Movant filed an amended proof of service reflecting proper service on the original borrower on 5/9/18 (dkt. 16) and notice of this continued hearing (dk. 17).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378- NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
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For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Grant in part and continue in part to 5/22/18 at 10:00 a.m. as set forth below. Appearances are not required on 5/8/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
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As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling. Although Movant served the motion on the entity that executed the documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower"), Movant did not serve the original borrower in compliance with Rule 7004(b)(3), which requires service on a corporation to be to the attention of an officer or agent. See LBR 4001-1(a) (1) and (c)(1)(B), 9014(b).
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hector A Figueroa Sr Pro Se
10:00 AM
Movant(s):
LALM Enterprises, LLC, a Represented By Edward T Weber
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Cont'd hrg re: Motion for relief from stay [UD] fr. 5/8/18
DYLAN COOPER PAUTSCH MYERS, LLC
vs DEBTOR
Docket 35
Tentative Ruling for 5/22/18:
Continue to 5/29/18 at 10:00 a.m. as set forth below. Appearances are not required on 5/22/18.
Analysis:
Background. At the hearing on 5/8/18 counsel for the movant engaged in a coluquy with this Court regarding possible relief from the automatic stay that would be effective notwithstanding this or other bankruptcy cases. This matter was continued from 5/8/18 on shortened notice to allow Movant to file and serve appropriate papers requesting such relief. On 5/9/18, Movant filed an amended motion (dkt. 50).
Request for relief in other bankruptcy cases filed in future bankruptcy cases, but not currently pending or past bankruptcy cases
The motion requests relief in future bankruptcy cases (aka "in rem" relief). Implicitly the motion might be seeking relief notwithstanding currently pending or past bankruptcy cases, but it does not actually request such relief.
The motion notes that a large number of persons appear to have alleged that they have an interest in the property, notwithstanding the foreclosure sale that resulted in the movant's interest in the property. The motion implies that the alleged interests might be a complete sham.
This Court recognizes that this might be so. This Court notes (a) the
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large number of alleged interests; (b) the multiple bankruptcy cases that appear to be involved, (c) this Court's order dismissing this case with a two year bar (dkt. 42); and (d) this Court's orders that certain persons connected to this case appear and show cause why they should not be sanctioned (dkt. 48, 49). Based on similar facts and circumstances, this Court has been persuaded in the past to grant relief applicable to past or pending bankruptcy cases (not just future bankruptcy cases), but only when expressly requested (and supported with adequate evidence), and only when requested via an adversary proceeding. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311). The movant has not followed such procedures, nor has the movant made any request for relief expressly applicable to any currently pending or past bankruptcy cases, so this Court construes the motion as requesting relief that is only applicable to future bankruptcy cases.
The motion was not served on most of the persons who apparently assert an interest in the property
The tentative ruling is to continue the motion to the date and time set forth at the start of this tentative ruling for service on the persons described below. According to the motion, various persons "claim to have a 'right to possession' as alleged tenants of the former owners [or singular owner?]" of the property prior to foreclosure (dkt. 50, p.7, para. 5.(4)). The tentative ruling is that such persons (and perhaps others) require notice of the relief sought in the motion.
This Court recognizes that any foreclosure might have wiped out the interests of any tenants. On the other hand in various situations that is not necessarily so - e.g., if the tenancy pre-dated the deed of trust and there was no agreement for subordination or the like then perhaps foreclosure did not wipe out the tenancies; or perhaps applicable nonbankruptcy law would protect residential tenants in some fashion; or perhaps even a bare possessory interest is entitled to some protection (perhaps that interest would be enough for a tenant to obtain the benefits of the automatic stay in their own future bankruptcy case long enough for an orderly move-out).
The point is not that the alleged tenants necessarily have any actual rights or ability to oppose the motion for "in rem" relief - Judge Bason is not prejudging those things one way or the other. Rather, the point is that Judge Bason has due process concerns about granting relief that would be effective notwithstanding any future bankruptcy filing without any notice to the alleged
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tenants or any others who may claim an interest in the property. See generally Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally).
The alleged tenants appear to be Catry Cho and Vivian Cho (dkt. 50, Ex.3); Robert Garviria and John Blanco (dkt. 50, Ex.4); Jonathan Marroquin and Zena Hill possibly aka Zena Louise Hill possibly aka Bonita D Hill (see cases no. 2:18-bk-14316-ER and 2:17-bk-21208-BR) (dkt. 50, Continuation Page, at PDF pp.12-13); Beanca "Bea" Cho (dkt. 50 at PDF pp.12-13); and Juan Herrera (one of the debtors in this case) (id.). In addition, the owner prior to foreclosure appears to have been Martin W. Gentry (the trustor under the deed of trust prior to foreclosure) (dkt. 50, Ex.1, at PDF p.5 of 21), and given the possibility that the alleged tenants or Mr. Gentry assert that some sort of alleged interest survived the foreclosure it appears appropriate to require service on him as well.
Accordingly, the tentative ruling is to direct the movant to serve (i) its papers and (ii) notice of the continued hearing date substantially as follows:
Martin W. Gentry; Catry Cho; Vivian Cho; Robert Garviria; John Blanco; Jonathan Marroquin; Zena Hill; Zena Louise Hill; Bonita D Hill; Beanca "Bea" Cho; Juan Herrera; Anais Cabrera; and any other residents or persons asserting an interest in the premises 34471 Via Gomez
Dana Point, CA 92624
Option for shortened time: This Court has selected a continued hearing date that contemplates shortened notice (per Rule 9006, Fed. R. Bankr. P.) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Herrera Pro Se
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Joint Debtor(s):
Anais Cabrera Pro Se
Movant(s):
Dylan Cooper Pautsch Myers LLC Represented By
Laurie Howell
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Cont'd hrg re: Motion for relief from stay [NA] fr. 5/8/18
REGAL BUILDINGS, INC.
vs DEBTOR
Docket 7
Tentative Ruling for 5/22/18:
Grant request for future in rem relief for the reasons stated below. Appearances are not required on 5/22/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reason: This matter was continued from 5/8/18 on shortened notice on the condition that Movant serve the motion and notice of this continued hearing on the persons who executed the subject commercial lease: (a) Chul Won Oh aka Young Hye Hong, (b) Hye Young Oh, and (c) O Dae San, Inc., by 5/9/18. On 5/8/18, Movant filed an amended proof of service reflecting service on those persons on 5/8/18 (dkt. 13, 15).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this
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order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Grant in part and continue in part to 5/22/18 at 10:00 a.m. as set forth below. Appearances are not required on 5/8/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Use of incorrect form. This court notes that Movant used the relief from stay form for non-bankruptcy actions, but the non-bankruptcy action at issue is an unlawful detainer proceeding, for which there is a different form. This Court's forms are tailored to the particular matter at issue, and in general use of the wrong form may lead to errors and requires additional work for this Court.
The tentative ruling is to excuse the use of the wrong form in this instance, with the caution that if the wrong form is used in future (without a sufficient explanation why the normal form is inadequate) it may lead to denial or delay of the requested relief.
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In addition, based on the unrebutted assertions in the motion that the
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debtor is neither a signatory of the lease nor an occupant of the leased premises (dkt. 7, pp. 4, 7, 9 & supporting exhibits), it does not appear that there is any basis to assert that 11 U.S.C. 362(a) applies.
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the commercial lease agreement(s). Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: (a) Chul Won Oh aka Young Hye Hong, (b) Hye Young Oh, and (c) O Dae San, Inc. (which must be served "Attn: Officer" or the like, per Rule 7004(b)(3), Fed. R. Bankr. P.). See motion (dkt. 7) at p.10.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and
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the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jin Hwan Oh Pro Se
Movant(s):
Regal Buildings, Inc., a CA Corp Represented By
Kathleen P March
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PIERRE CASANOVA
vs DEBTOR
Docket 210
Appearances required. Given that any reply may be presented at the hearing (see order shortening time, at dkt. 217), and to encourage the parties to reach a consensual resolution, there is no tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Pierre Cassanova Represented By Sandford L. Frey Merak E Eskigian
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Application for fees and expenses [Filed by Wesley H. Avery, Trustee]
Docket 50
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jonatan Contreras-Fararoni Represented By
Michael H Colmenares
Joint Debtor(s):
Sofia De Los Angeles Rodriguez Represented By
Michael H Colmenares
Trustee(s):
Wesley H Avery (TR) Represented By Joseph Caceres Wesley H Avery
11:00 AM
Adv#: 2:18-01076 Yoo v. Windorf et al
Docket 1
- NONE LISTED -
Debtor(s):
Paula L Grandchamp Represented By Scott Kosner
Defendant(s):
Deborah A Windorf Pro Se
Paula L Grandchamp Pro Se
Plaintiff(s):
Timothy J Yoo Represented By Carmela Pagay
Trustee(s):
Timothy Yoo (TR) Pro Se
11:00 AM
Adv#: 2:18-01050 Pachulski v. Layfield V, LLC, a Delaware limited liability comp
Docket 12
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Complaint (adv. dkt. 1); Request for Judicial Notice (dkt. 12, pdf pp. 33- 97); Memorandum of Points & Authorities in Support of Motion (dkt. 13).
Reasons: The tentative ruling is to grant plaintiff's request for judicial notice and grant the motion for entry of default judgment against defendants Layfield V, LLC and Philip Layfield on claims 1, 3, and 5 of the Complaint.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
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Defendant(s):
Layfield V, LLC, a Delaware limited Pro Se Philip Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski Represented By Steven J Kahn Malhar S Pagay
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Adv#: 2:18-01030 Construction Laborers Trust Funds for So Calif v. GRAYSON
Docket 7
Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference, calendar no. 5, 5/22/18 at 11:00 AM.
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference, calendar no. 2.10, 4/17/18 at 11:00 AM.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
Defendant(s):
RICKY TYRONE GRAYSON Represented By Ryan A Stubbe
Movant(s):
RICKY TYRONE GRAYSON Represented By Ryan A Stubbe
Plaintiff(s):
Construction Laborers Trust Funds Represented By
Marsha M Hamasaki Jeffry D Sackman
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Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
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Adv#: 2:18-01030 Construction Laborers Trust Funds for So Calif v. GRAYSON
fr. 4/10/18, 4/17/18
Docket 1
Tentative Ruling for 5/22/18:
Continue to 6/12/18 at 11:00 a.m. for the reasons stated in the status report (adv. dkt. 16). Appearances are not required on 5/22/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required. The court has reviewed the debtor’s motion to dismiss (dkt. 7), Plaintiff’s opposition (dkt. 14), the parties' joint status report (dkt. 9), Notice of Related District Court Case (dkt. 12) and the other filed documents and records in this adversary proceeding.
Paragraph "(2)" below is the tentative ruling on the motion to dismiss.
Paragraphs "(1)," "(3)," and "(4)" below are Judge Bason's standard requirements for status conferences, with additional provisions specific to this matter. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a)
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venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
With respect to this specific matter, although nondischargeability complaints are prototypically "core" bankruptcy matters, this Bankruptcy Court is concerned about possible duplication of litigation and infringement on the District Court's management of the related nonbankruptcy action pending in that Court since 6/16/17. Should this Bankruptcy Court grant relief from the automatic stay (on this Court's own motion or the motion of either party) so that such litigation can proceed, and meanwhile hold this nondischargeability action in abeyance? Alternatively, are other approaches preferable, such as removal, or withdrawal of the reference, or bifurcation of issues? The parties are directed to address what is the most appropriate and efficient way to proceed.
Motion to Dismiss (dkt. 7)
The legal standards applicable to a motion to dismiss will not be repeated here because they are well known and have been summarized in the parties' filed papers. The tentative ruling is to grant the motion to dismiss the first and second claims for relief, with leave to amend, for the following reasons.
11 U.S.C. 523(a)(2)(A): false representation etc.
The debtor/defendant seeks dismissal of the first claim for relief, under section 523(a)(2)(A), on the ground that the plaintiff has not alleged that he obtained money, property, services, or credit from plaintiff as a result of the
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alleged fraud. The debtor/defendant argues (adv. dkt. 7, pp.6:23-7:3) that any alleged misrepresentations occurred in reports filed after the employees had performed services for the prior month and therefore after the debt was incurred, so the money or property at issue was not "obtained by" the alleged fraud.
On the one hand, the motion to dismiss is not entirely persuasive on this point. Reading the complaint in the light most favorable to the plaintiff as this Court must do when addressing a motion to dismiss, the complaint (adv. dkt. 1, p.1, para. 25) alleges that as a result of an ongoing pattern of false reports the Trust Funds (whom the plaintiff represents) missed opportunities to assert claims against the debtor/defendant's general contractors, which allegedly would have resulted in recovery of funds to cover the dollar amounts owed to the Trust Funds. In other words, if the Trust Funds had known of the (allegedly) false representations in those reports (or the allegedly fraudulent nature or false pretenses in those reports) then, allegedly, the Trust Funds could have pursued remedies that apparently are no longer available to them, so the fact that the reports were filed after the services were rendered each month is not dispositive.
But the complaint does not explain how the Trust Funds' missed opportunity amounts to obtaining money, property, services, or credit from plaintiff as a result of the alleged fraud. Rather, it appears that the (allegedly) false reports enabled the debtor/defendant to continue obtaining services from the employees (without providing those employees all of the compensation to which they were owed, in the form of funds that should have been transferred to the Trust Funds for the benefit of the employees).
Compare In re Kay, 60 B.R. 174, 176 (Bankr. C.D. Cal. 1986) (liability based on fact that "the employee beneficiaries" sustained damages as "the proximate result of the defendants' representations") (emphasis added).
In sum, there are not enough allegations in the complaint to show a causal connection between the alleged falsehoods of the debtor/defendant and some sort of damage to the plaintiff. It is possible, of course, that the plaintiff stands in the shoes of the employees for these purposes, but the complaint does not include sufficient allegations (or copies of documents) for this Court to read the complaint that way. It is also possible that the plaintiff itself has been damaged - e.g., perhaps the plaintiff is liable to the employees if it did not detect and cure the alleged falsehoods in the debtor/defendant's reports, and thus the plaintiff itself has been damaged - but again the
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complaint does not include sufficient allegations (or copies of documents) for this Court to read the complaint that way.
For all of these reasons, the tentative ruling is to grant the motion to dismiss the first claim for relief, with leave to amend. The tentative deadline for filing an amended complaint is 5/1/18.
The debtor/defendant has raised a separate argument with respect to the first claim for relief. The tentative ruling, however, is to reject the debtor/defendant's alternative argument (adv. dkt. 7, pp.7:23-8:5) that, under Rule 9(b), Fed. R. Civ. P. (incorporated by Rule 7009, Fed. R. Bankr.P.), the complaint is not sufficiently precise about the amount of hours that were falsely under-reported in each report. The complaint sufficiently apprises the debtor/defendant of the grounds of the alleged fraud, and any greater specificity is a matter for discovery and proof at trial, not a defect in pleading.
11 U.S.C. 523(a)(4): fraud or defalcation while acting in a fiduciary capacity, etc.
The debtor/defendant seeks dismissal of the second claim for relief, under section 523(4), on the ground that the complaint lacks sufficient allegations that he is a fiduciary with respect to the funds at issue. The tentative ruling is that this is correct.
The complaint alleges that "amounts withheld from employee wages meant to be transmitted to the Vacation Trust" became assets of that trust "'as of the earliest date on which such contributions ... can reasonably be segregated from the employer's general assets.'" Complaint (adv. dkt. 1), p. 8, para.30 (emphasis added, quoting 29 C.F.R. 2510.3-102). In response the debtor/defendant argues (adv. dkt. 7, pp.9:12-15): "Plaintiff has failed to allege that such withholdings actually occurred and when such employee wage withholdings could be 'reasonably segregated from the employer’s general assets.' Without such allegations, Plaintiff has failed to adequately allege that plan assets are at issue." (Emphasis added.)
To illustrate, consider the following hypothetical situation. Suppose that the debtor/defendant was paid $10X by a customer, but had obligations at that time of $15X consisting of $5X owed to employees for their base pay,
$1X that should have been transmitted to the Vacation Trust but was not, and
$9X for various other business expenses such as rent and income taxes. Did the $1X ever become segregated (withheld from wages) to the extent that it
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became a separate fund as to which the debtor/defendant had fiduciary obligations, or was the $1X only one contractual debt among many, with no segregated fund and therefore no associated fiduciary obligations?
In a similar vein the debtor/defendant also argues (adv. dkt. 7, pp.9:16-10:17) that the allegations about purported control over plan assets are conclusory, that unpaid contributions to employee benefit funds are not plan assets, and that there are insufficient allegations in the complaint to establish that there was any pre-existing fiduciary relationship. The tentative ruling is that all of these arguments are persuasive.
The debtor/defendant cites persuasive authority in support of the foregoing analysis. It is one thing if an employer misuses employee contributions to a trust fund, but if the funds have never reached the employee and instead are contributions that the employer was supposed to make then the failure to pay that contribution is not, by itself, enough to establish a fiduciary relationship with respect to those funds. See In re Quinones, 537 B.R. 942, 945 n.2 (Bankr. N.D. Cal. 2015) (distinguishing employer contributions "from the situation where an employer has control over funds that were withheld from employees' paychecks"). The complaint does not include sufficient allegations to determine which type of contribution is at issue.
In sum, the complaint does not contain enough allegations about the precise relationships among the parties so as to be able to figure out when the debtor/defendant's duties arose and to whom. The tentative ruling is to set the same deadline to amend the complaint as for the first claim for relief.
Unless this Court is persuaded to depart from the foregoing tentative ruling it will be adopted as this Court's final ruling on the motion to dismiss. The debtor/defendant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge) at this time? The tentative ruling is to set a deadline of 5/1/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties
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cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 2/5/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): TBD Expert(s) - deadline for reports: TBD
Expert(s) - discovery cutoff (if different from above): TBD Dispositive motions to be heard no later than: TBD
Joint Status Report: 6/5/18
Continued status conference: 6/19/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 4/17/18 at 11:00 a.m. to be heard concurrently with defendant's motion to dismiss. Appearances are not required on 4/10/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
11:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
Defendant(s):
RICKY TYRONE GRAYSON Represented By Ryan A Stubbe
Plaintiff(s):
Construction Laborers Trust Funds Represented By
Marsha M Hamasaki Jeffry D Sackman
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
11:00 AM
Adv#: 2:18-01068 Los Angeles County Sheriff's Dapartment v. Gandarilla et al
Docket 1
Revised Tentative Ruling for 5/22/18:
Continue to 6/19/18 at 11:00 a.m. to be concurrent with the hearing on the motion of Cardlock Fuels System, Inc. ("Cardlock") to set aside the Clerk's entry of default against it. Appearances are not required on 5/22/18.
Analysis. It appears that the funds levied by the Los Angeles County Sheriff's Department ("Sheriff") might properly belong to the debtor, or to Cardlock (if it can obtain relief from default), or to the bankruptcy estate (given the debtor's alleged nondisclosure in her bankruptcy papers of her claim to the funds at issue). See adv. dkt. 27, Ex.A, at pp.3:11-4:14 (Cardlock's affirmative defenses, asserting that either it or the debtor's bankruptcy estate owns the funds, not the debtor). Until it is determined whether or not the Clerk's default against Cardlock will be vacated, it is premature to address the motion for a default judgment against Cardlock. In addition, given the potential interests of the bankruptcy estate in the funds, and the possible lack of anyone to represent the estate if a default judgment were to be entered against Cardlock, it is premature to enter a default judgment against the other possible representative of the estate - the Chapter 13 Trustee.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
11:00 AM
Debtor(s):
Laura Elena Gandarilla Represented By Leonard Pena
Defendant(s):
Laura Elena Gandarilla Pro Se
Laura Dockery Pro Se
Cardlock Fuels System, Inc. Pro Se
Plaintiff(s):
Los Angeles County Sheriff's Represented By Jacquelyn H Choi
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:18-01068 Los Angeles County Sheriff's Dapartment v. Gandarilla et al
Docket 17
Revised Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference in this adversary proceeding (calendar no. 6, 5/22/18 at 11:00 a.m.).
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Laura Elena Gandarilla Represented By Leonard Pena
Defendant(s):
Laura Elena Gandarilla Represented By Leonard Pena
Kathy A Dockery Pro Se
Cardlock Fuels System, Inc. Pro Se
Plaintiff(s):
Los Angeles County Sheriff's Represented By Jacquelyn H Choi
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:18-01068 Los Angeles County Sheriff's Dapartment v. Gandarilla et al
Docket 19
Revised Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference in this adversary proceeding (calendar no. 6, 5/22/18 at 11:00 a.m.).
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Laura Elena Gandarilla Represented By Leonard Pena
Defendant(s):
Laura Elena Gandarilla Represented By Leonard Pena
Kathy A Dockery Pro Se
Cardlock Fuels System, Inc. Pro Se
Plaintiff(s):
Los Angeles County Sheriff's Represented By Jacquelyn H Choi
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
Docket 34
Grant for the reasons stated in the motion and dismiss case with a 180-day bar to refiling pursuant to 11 U.S.C. 1112(b)(1). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Samir Mourad Represented By Krystina T Tran
1:00 PM
of Bank of America, N.A. (Claim 24) and Comenity Capital Bank, A.K.A. Toyota Rewards Visa (Claim 25)
Docket 165
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
1:00 PM
Docket 166
- NONE LISTED -
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
1:00 PM
For authority to sell real property free and clear of all liens, claims and interests; (3) For determination of the buyer to
be a "Good Faith" purchaser within the meaning of bankruptcy code section 363 (M) Protection; (4) Authorize payment of commissions and other sale-related expenses; and (5) Waiver of 14-day stay periods set forth in bankruptcy rule 6004(H)
Docket 106
- NONE LISTED -
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
1:00 PM
(2) For authority to sell real property free and clear of all liens, claims and interests; (3) For determination of the buyer to
be a "Good Faith" purchaser within the meaning of bankruptcy code section 363 (M) Protection; (4) Authorize payment of commissions and other sale-related expenses; and (5) Waiver of 14-day stay periods set forth in bankruptcy rule 6004(H)
Docket 107
- NONE LISTED -
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
1:00 PM
Docket 108
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
1:00 PM
Docket 109
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
1:00 PM
Docket 111
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
1:00 PM
Docket 113
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
1:00 PM
Docket 115
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
1:00 PM
Docket 117
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
1:00 PM
Docket 119
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
1:00 PM
Docket 9
Tentative Ruling for 5/22/18:
Appearances are not required on 5/22/18.
Current issues.
This court does not have any issues to raise sua sponte.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (timely served, dkt. 26, 32).
Plan/Disclosure Statement*: This court will discuss setting a deadline for the filing of a draft plan/disclosure statement at the next status conference.
Continued status conference: 7/17/18 at 1:00 p.m. Brief status report due 7/3/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
1:00 PM
Current issues.
Budget Motion (dkt. 21). This Court has reviewed Debtor's Supplemental Declaration in Support of the Budget Motion (dkt. 34). Although that declaration addresses many of the concerns raised by this Court and by Strategic Acquisitions, Inc. (dkt. 23), the debtor has failed to provide historical monthly profit and loss statements from the period from 1/1/18 through 3/31/18 as required by this Court's order (dkt. 27, para. 5.a.). The parties should be prepared to address what remedy this Court should impose.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (timely served, dkt. 26, 32).
Plan/Disclosure Statement*: In view of the debtor's declaration about her current and future projected income, the tentative ruling is to vacate the prior deadline to file these documents, and set a new deadline at a future status conference, with the caveat that if the debtor fails to show sufficient diligence in obtaining employment and/or if the estate suffers any substantial losses then this Court might have to dismiss or convert this case.
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor and by the debtor herself.
Current issues. This Court has reviewed the debtor's status report (dkt.
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, the response (dkt. 23) filed by creditor Strategic Acquisitions, Inc. ("Strategic"), and the other filed documents and records in this case.
Prior failed case. The debtor's husband's prior case (no. 17-
bk-19071-NB) was a chapter 13 case that was dismissed on 10/13/17 with a 180-day bar to re-filing for failure to make plan payments or appear at the meeting of creditors (11 U.S.C. 341(a)).
Budget Motion (dkt. 21). First, as Strategic points out, the debtor's bankruptcy Schedule I, line 8a, lists $6,220/mo. of net income from "rental property and from operating a business, profession, or farm" but fails to follow the instructions to "[a]ttach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total net monthly income." In addition, as Strategic points out, the debtor may be failing to account for the payment of real property taxes and perhaps also income taxes, and therefore it is not at all clear how the debtor will be able to fund any plan of reorganization.
The tentative ruling is to set a deadline of 4/17/18 for the debtor to file declaration(s) (i) attaching the statement(s) required by the line 8a instructions, (ii) providing complete explanations of any other sources of income (e.g., how long does the debtor anticipate continuing to receive disability payments? does the debtor ancticipate returning to employment, and if so, when?), (iii) explaining whether the debtor is accounting for real estate taxes and income taxes, (iv) explaining how the debtor anticipates generating sufficient income to fund a plan of reorganization, and (v) attaching historical monthly accounts for the period of one year prepetition through 3/31/18.
Second, bankruptcy Schedule J (attached to the budget motion), lines 17c and 17d, list payments to Strategic of $1,750/mo. and to Ropers Majeski of $500/mo. The tentative ruling is to treat those payments as adequate protection payments on account of claims that appear to be secured claims, conditioned on return of such payments in the event that such security interests or claims are avoided or otherwise disallowed.
Third, notice of the motion and the deadline for objections is inadequate. The proof of service fails to attach a service list of creditors, and the debtor checked the box directing creditors to file any oppositions within 14 days' from the date of the proof of service (3/27/18), which would be the date of this hearing. Nevertheless, despite the lack of adequate service or notice, the tentative ruling is that on the present record it appears that it would be
1:00 PM
more prejudicial to creditors to prevent the debtors from making their proposed expenditures than to permit those expenditures, so the tentative ruling is to grant the budget motion on an interim basis, subject to any objections at a continued hearing simultaneous with the continued status conference date set forth below. This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006, Fed. R. Bankr. P.), but that date is conditioned upon the debtor serving the motion on the entire creditor matrix the day after the current hearing date.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: File by 6/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time). This Court is aware that the debtor has requested a much later deadline (dkt. 19, p. 5), but this Court is not aware of any reason why so much time is needed. The debtor should be negotiating with secured creditors and other key constituencies already.
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
2:00 PM
Docket 0
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
2:00 PM
For authority to sell real property free and clear of all liens, claims and interests; (3) For determination of the buyer to
be a "Good Faith" purchaser within the meaning of bankruptcy code section 363 (M) Protection; (4) Authorize payment of commissions and other sale-related expenses; and (5) Waiver of 14-day stay periods set forth in bankruptcy rule 6004(H)
Docket 106
Revised Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference (calendar no. 4, 5/22/18 at 2:00 p.m.).
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
Movant(s):
Wooton Group, LLC Represented By Leslie A Cohen
2:00 PM
(2) For authority to sell real property free and clear of all liens, claims and interests; (3) For determination of the buyer to
be a "Good Faith" purchaser within the meaning of bankruptcy code section 363 (M) Protection; (4) Authorize payment of commissions and other sale-related expenses; and (5) Waiver of 14-day stay periods set forth in bankruptcy rule 6004(H)
Docket 107
Revised Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference (calendar no. 4, 5/22/18 at 2:00 p.m.).
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
Movant(s):
Wooton Group, LLC Represented By Leslie A Cohen
2:00 PM
Docket 5
Revised Tentative Ruling for 5/22/18:
Appearances are not required on 5/22/18. See below for continued Status Conference date.
Current issues.
Sale motions for Stockton and Fresno properties (dkt. 106, 107). Subject to the following, the tentative ruling is to grant these motions on the terms agreed by the parties per dkt. 123, 124, 127, 128, 129, and 130.
Fresno dual agency. This Court's order (dkt. 112) authorized the retention of Newmark Grubb Pearson Commercial ("Newmark") as real estate broker but specified "no dual agency." Id. p.2:19 (emphasis in original.) The Fresno property sale motion concedes (dkt. 107, p.3, n.1) that Newmark has acted in a dual agency capacity. The tentative ruling is that, before lodging any proposed order granting the Fresno motion (dkt. 107), the debtor must file a declaration establishing that another broker has been brought into the transaction to represent one of the two parties, to be paid out of Newmark's commission. The tentative ruling is that such declaration must be served on the parties who have filed written opositions and on the U.S. Trustee.
Good faith findings (11 U.S.C. 363(m)). The tentative ruling is that, before lodging any proposed order that includes a "good faith" finding, the debtor must file a declaration from the buyer (not just the broker and/or debtor) and serve that declaration on the parties who have filed written opositions and on the U.S. Trustee.
Hearing to be set if needed. The tentative ruling is that if this Court is not satisfied with the foregoing declarations then this Court will issue an order setting a hearing to address whatever troubles this Court. This Court does not anticipate, however, that any hearing will be necessary.
Deadlines/dates. This case was filed on 2/16/18.
2:00 PM
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21)
using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 6/26/18 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. There is no tentative ruling at the present time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet,
2:00 PM
except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at
least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/22/18 at 2:00 p.m. (per 4/10/18 ruling)
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 76) and the pending motions for relief from the automatic stay and related matters. There is no tentative ruling at the present time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but,
2:00 PM
whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/22/18 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves. This court has reviewed the debtor's chapter 11 status report (dkt. 31) and all other filings in this case.
Current issues
Proposed bankruptcy counsel (dkt. 9, 30, 34, 45, 46). The debtor has now disclosed that the source of the prepetition retainer is Olympic Holdings, LLC ("Olympic"), the managing member of which is also the debtor's managing member, namely Mr. Mark Slotkin. The debtor has also clarified that although Olympic proposes to pay counsel's monthly bills as they come due (to be held in proposed counsel's client trust account until allowed), Olympic reserves the right to request reimbursement of prepetition payments as a general unsecured claim and postpetition payments as an administrative claim - would such postpetition request be on "substantial contribution" grounds? or on other grounds, such as an administrative priority loan (under 11 U.S.C. 364? without interest? with interest?)?
The foregoing facts and questions raise a host of ethical concerns. Any counsel who is paid by a third party (the "Funder") may be subject to conflicts of interest, especially if there are potential avoidance actions, reimbursement or contribution or indemnity claims, or other claims that could be investigated or brought against the Funder. At the hearing, proposed
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counsel must address the following.
Connections. What are all of the connections (as that term is used in FRBP 2014) among the Funder, the debtor, Mr. Slotkin, and proposed counsel? Are there any conflicts of interest, or potential conflicts? In the past, Judge Bason has followed authority holding that conflicts cannot be waived by a debtor in possession because it is representing the interests of creditors and has no authority to waive conflicts on creditors' behalf. In addition, to help in identifying all connections, Judge Bason's posted procedures require the use of Local Form 2014-1 (see those procedures at www.cacb.uscourts.gov for instructions how to fill out that form).
Terms. What are the precise understandings regarding the
funds?
Informed consent of Funder. Mr. Slotkin declares (dkt. 45,
para.5) that both he and Olympic understand that proposed counsel "does not represent us, and only represents the Debtor"? Have the members of Olympic (whoever they might be) been advised of this as well? Have all such persons been advised not only of representation issues but also attorney- client privilege issues, including what can happen if a trustee were to be appointed? Have all such persons been advised of duties of loyalty, whom counsel will continue to represent (if anyone) if a conflict develops, and other ethical and practical concerns? Who provided such advice: independent counsel, or the debtor's proposed counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing?
Other considerations. Has proposed counsel demonstrated or represented to this Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21)
2:00 PM
using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: concurrent with any other hearings in this case, and also on 5/1/18 at 2:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
2:00 PM
Docket 108
Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference (calendar no. 13, at 2:00 p.m. on 5/22/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Docket 109
Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference (calendar no. 13, at 2:00 p.m. on 5/22/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Docket 111
Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference (calendar no. 13, at 2:00 p.m. on 5/22/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Docket 113
Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference (calendar no. 13, at 2:00 p.m. on 5/22/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Docket 115
Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference (calendar no. 13, at 2:00 p.m. on 5/22/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Docket 117
Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference (calendar no. 13, at 2:00 p.m. on 5/22/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Docket 119
Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference (calendar no. 13, at 2:00 p.m. on 5/22/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
to Comply with Federal Rule of Bankruptcy Procedure 2019 fr. 5/1/18
Docket 125
Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference (calendar no. 13, at 2:00 p.m. on 5/22/18).
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Docket 1
Revised Tentative Ruling for 5/22/18:
Appearances required.
Current issues.
April MOR (dkt.192). On PDF p. 3, the debtor identifies a payment made to "Transport" on 4/26/18 in the amount of $55,515.00 for "dispatch and brokerage svc." What is this payment for? Is it an "ordinary course" transaction?
Motion to Disqualify Truck Driver Counsel (dkt. 125). This Court issued an order (dkt. 169, amended dkt. 175) continuing this motion and set
(i) a 5/15/18 deadline for the Slattery Law Firm and Hirsch Law Firm to file supplemental papers addressing who properly represents the Truck Drivers; and (ii) a 5/21/18 at noon deadline to file any responses.
This Court has reviewed the relevant papers. See dkt. 125, 126 & 127 (motion papers), dkt. 143 (Hirsch opposition), dkt. 145 (Slattery opposition), dkt. 156, 157 (debtor's reply), dkt. 161 (Slattery decl.), dkt. 167 (Slattery Rule 2019 statements), dkt. 189 (debtor's authorities re attorney-client privilege as applied to retainer agreements), dkt. 199 (Hirsch supp. opposition), dkt. 201 (Slattery decl.), dkt. 202 (Hirsch supp. reply), dkt. 203 (Hirsch evid. obj. to Slattery decl.), dkt. 204 (Rivera|Shakleford opp. re S.H. Chung, R.M. Rubio,
H.D. Alvarez & G. Perez Silva).
There is no tentative ruling, but the parties should be prepared to address the arguments set forth in the filed papers.
(c) Objection to Claim Nos. 11, 37, 38, 40, 44, 45, 50 (dkt. 108, 109,
111, 113, 115, 117, 119). The proofs of claim were filed by the Hirsch Law Firm and the claim objections/notices were served on the Hirsch Law Firm
2:00 PM
and Slattery Law Firm. However, based on the debtor's pending motion to disqualify both firms, the tentative ruling is to continue the hearings on these claim objections to 6/19/18 at 2:00 p.m., pending resolution of the motion to disqualify. At the continued hearings, the parties should be prepared to address whether it would be appropriate for this court to set continued oppositions deadlines.
Note: Counsel did not comply with Judge Bason's posted procedures (at www.cacb.uscourts.gov) requiring a cost/benefit analysis for any claim objection (although this court's own cost/benefit analysis appears to favor seeking to reclassify these claim). In future, counsel should comply with those posted procedures.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/29/18 at 2:00 p.m., to be heard concurrently with the other matters set for hearing in this case. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/1/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/6/18:
Appearances required.
2:00 PM
Current issues.
Motion to Approve Compromise (dkt. 36). The parties should be prepared to address the status of any settlement negotiations with respect to the pending motion to approve compromise.
Status Report. At the last status conference on 2/13/18, this court directed the debtor to file a brief status report by 2/27/18. As of the preparation of this tentative ruling, the debtor has not complied. The debtor should be prepared to address why it failed to comply with this court's order.
Employment application: Creditors' Committee Counsel (dkt. 47, 65). The objection by certain truck drivers (dkt. 63) has been withdrawn (dkt. 89). The debtor's limited objection (dkt. 55) and the reply papers (dkt. 85, 86) raise issues that are best addressed in connection with any application for compensation, at which time this Court can evaluate whether the hourly billing rates are commensurate with the nature of the work performed, the time spent on each task, and the other factors under 11 U.S.C. 330. Therefore the tentative ruling is to overrule the objection and authorize the employment.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
2:00 PM
Current issues.
The parties should be prepared to address (a) whether the Court should order mandatory mediation of the proposed settlement, proposed assignment of the lease, and related issues; (b) whether concurrently this Court should set deadlines such as a discovery cutoff or, conversely, whether this Court should temporarily issue a stay of some litigation; and (c) whether the parties would prefer that this Court provide some tentative rulings or preliminary thoughts on various issues, or if instead it would foster possible settlement or serve other beneficial goals for this Court not to do those things at this stage of the case.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
n/a
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 2/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
2:00 PM
Plan/Disclosure Statement*: This court will discuss setting a
deadline for the filing of a draft plan/disclosure statement at the status conference.
Continued status conference: 2/13/18 at 1:00 p.m., brief status report due 1/30/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
8:30 AM
Docket 89
- NONE LISTED -
Debtor(s):
Brenda Joyce Arlon Represented By Brad Weil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 59
Debtor(s):
Rosa Jerez Represented By
Rebecca Tomilowitz
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 61
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Brent Green Represented By
R Grace Rodriguez
Joint Debtor(s):
Cheryl Jacobs-Green Represented By
R Grace Rodriguez
Movant(s):
WELLS FARGO BANK, N.A. Represented By Robert P Zahradka Darshana Shah
Oneika White-Dovlo Jenelle C Arnold Corey Phuse
Megan Porter Sabekhon Nahar Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] CIT BANK, NA
vs
DEBTOR
Docket 27
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal
10:00 AM
analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jesus Torillo Pro Se
Movant(s):
CIT BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] WILMINGTON SAVINGS FUND SOCIETY, FSB
vs
DEBTOR
Docket 29
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal
10:00 AM
analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jesus Torillo Pro Se
Movant(s):
Wilmington Savings Fund Society, Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 11
- NONE LISTED -
Debtor(s):
Caterina Haiek Represented By Joshua L Sternberg
Movant(s):
Wells Fargo Bank, N.A. Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 100
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jose G Corona Represented By Julie J Villalobos
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SANTANDER CONSUMER USA INC.
vs DEBTOR
Docket 28
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Tammy Marie Porter Represented By Sanaz S Bereliani
Movant(s):
Santander Consumer USA Inc. dba Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PERITUS PORTFOLIO SERVICES, II, LLC
vs DEBTOR
Docket 26
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Elichia LaRonda Sargent Represented By Kahlil J McAlpin
Movant(s):
Peritus Portfolio Services ll, LLC as Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FORD MOTOR CREDIT COMPANY, LLC
vs DEBTOR
Docket 30
- NONE LISTED -
Debtor(s):
Rita Williams Minor Represented By Matthew D Resnik
Movant(s):
Ford Motor Credit Company LLC Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICAN HONDA FINANCE CORP
vs DEBTOR
Docket 14
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Gilbert Betancourt Represented By Sevan Gorginian
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
CMA, LLC
vs DEBTOR
Docket 25
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
10:00 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Theresa LaVette Jones Pro Se
Movant(s):
CMA, LLC Represented By
Helen G Long
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S.C. 362(c) Or That No Stay Is In Effect Under 11 U.S.C. 362(c)(4)(A)(ii)
Docket 43
Grant. The debtor's opposition asserting that the movant lacks standing or is not the real party in interest is unpersuasive, for the reasons set forth in this Court's order (dkt. 58, p.2, para.3) denying the debtor's application for an order shortening time to seek turnover of rents. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Manuel Palilio Domingo Represented By Kevin Tang
Movant(s):
PENNYMAC CORP Represented By Cheryl S Chang
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 12
Revised Tentative Ruling for 5/29/18:
Appearances required. This Court has reviewed the motion papers (dkt. 12), the opposition papers (dkt. 20, 21) filed by U.S. Bank National Association as trustee, "Mr. Cooper" as servicer (collectively, "US Bank"), the debtor’s reply papers (dkt. 27), and other filed documents.
The tentative ruling is that (1) the debtor apparently seeks to continue the automatic stay of 11 U.S.C. 362(a) as to all property, not just the debtor’s real property; (2) the burden is on the debtor to show good faith in filing the current bankruptcy petition; (3) there is a presumption that the debtor did not file this case in good faith, which can only be rebutted by clear and convincing evidence; and (4) the debtor has not adequately rebutted that presumption on the present record; but (5) it is appropriate to provide the debtor with an opportunity to present supplemental evidence, which might be done in any of several ways. (a) This Court could hold an evidentiary hearing. That hearing would have to occur within the next day in order to come within the 30 day limit in 11 U.S.C. 362(c)(3)(B), unless US Bank is willing to waive that limit.
Alternatively, it might be appropriate for this Court to make findings of fact and conclusions of law without live testimony, on written declarations and briefs. (c) Alternatively, an adequate protection order ("APO") might be sufficient to establish good faith if the monthly payments are set at a sufficient dollar amount and other terms and conditions are applied.
Analysis:
Background
The debtor seeks an order continuing the automatic stay in this case pursuant to 11 U.S.C. 362(c)(3). The motion (dkt.12, p.3) only expressly references the real property and improvements at 9820 Brookshire Ave., Downey, CA 90240 (the "Downey Property"), although the debtor seeks to
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continue the stay as against all creditors (id., para. 1.e.) regardless whether they have liens against that property. In any event, the motion focuses on two creditors in particular (apparently the holders of deeds of trust against the Downey Property): (1) US Bank, and (2) Citimortgage (dkt. 12).
At the hearing the debtor is directed to clarify whether relief is sought as to all property of the estate. The tentative ruling is that any attempt to do otherwise would inappropriately discriminate among creditors.
For example, if the debtor seeks to stay acts against the Downey Property but not stay garnishment of wages, that might create a race to seize those wages. Such an unrestricted race to seize assets could be disruptive to the orderly restructuring of the debtor’s finances that is at the heart of the Bankruptcy Code’s attempt to treat creditors equally and maximize creditors’ recoveries.
Accordingly, the tentative ruling is to interpret the ambiguous motion as a request to continue the automatic stay as against all property and creditors.
The automatic stay will terminate 30 days after the petition date unless this Court enters an order extending it.
On 1/26/18 the debtor filed a voluntary chapter 13 petition (2:18-bk- 10876-WB) (the "Prior Case"). The Prior Case was dismissed on 2/13/18 for failure to file case commencement documents (id., dkt. 11). Less than a year later, on 5/1/18, the debtor filed this chapter 11 case. Therefore, the automatic stay will terminate on 5/31/18 if this court does not extend the stay, pursuant to 11. U.S.C. 362(c)(3):
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1- year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707
–
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
on motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court
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may extend the stay in particular cases as to any or all
creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed. [Emphasis added.]
The parties have not briefed the legal standards applicable to 11
U.S.C. 362(c). First, there is authority that if the automatic stay is not continued beyond 30 days then it terminates in all aspects, i.e., not only as to the debtor individually but as to all parties and the bankruptcy estate. In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11- bk-53730-NB, docket #40 (Memorandum Decision).
Second, there is authority that "good faith" is a factual inquiry, although to the extent the statute defines what is good faith the interpretation of the statute is a legal question. See generally, e.g., In re Ellsworth, 455 B.R. 904, 914, 917 (9th Cir. BAP 2011) (holding that good and bad faith in other contexts are factual inquiries). Cf. U.S. Bank v. Village at Lakeridge, LLC,
U.S. (3/5/2018) (analyzing what issues are factual and what are legal).
Third, the factual nature of "good faith" does not necessarily mean that live testimony is required. See, e.g., In re Nicholson, 435 B.R. 622, 635-36 (9th Cir. BAP 2010). In fact, the tentative ruling is that, just like hearings on whether to grant relief from the automatic stay, any hearing on whether to continue the automatic stay is intended to be an expedited, summary proceeding, not a full blown trial. See 11 U.S.C. 362(c)(3)(B) (30 day limit to conclude hearing), and compare 11 U.S.C. 362(d)&(e) (30 day limit to conclude hearing) and In re Johnson, 756 F.2d 738, 740 (9th Cir. 1995) (summary nature of proceedings on whether to grant relief from stay); In re Veal, 450 B.R. 897, 914-15 (9th Cir. BAP 2011) (same, requiring only "colorable" basis for standing to seek relief from stay).
Fourth, the "good faith" inquiry is narrowly focused on the filing of the petition. For example, debtors sometimes argue that because they have a genuine desire to retain a roof over their and their family's heads they are acting in good faith, but the question is not the genuineness of that motive. The question is whether the debtor had a sufficient basis to believe that the current bankruptcy case could be properly prosecuted notwithstanding the dismissal of one or more earlier bankruptcy cases. In a reorganization case,
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such as this one, the tentative ruling is that the test of good faith is analogous to a standard test of whether relief from the automatic stay is appropriate: when the petition was filed, did the debtor have a good faith basis to believe that there would be "a reasonable possibility of a successful reorganization within a reasonable time." United Savings Assn. v. Timbers of Inwood Forest, 484 U.S. 365, 376 (1988) (interpreting 11 U.S.C. 362(d)(2)) (citation and internal quotation marks omitted), and see 11 U.S.C. 362(d)(3)(A) (similar test in small business cases).
Fifth, a finding of good faith for the preliminary purpose of whether to continue the automatic stay under 11 U.S.C. 362(c)(3) is not necessarily determinative of good faith for any other purposes. See, e.g., 11 U.S.C. 1129 (a)(3), and In re Abdelgadir, 455 B.R. 896, 900 (9th Cir. BAP 2011).
The tentative ruling is that this case presumptively was not filed in good faith, and that presumption is only rebuttable by clear and convincing evidence.
The statute provides, in relevant part:
… a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary) – as to all creditors, if –
…
a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to –
(aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney);
…
there has not been [x] a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or [y] any other reason to conclude that the later case will be concluded –
…
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(bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed. [11
U.S.C. 362(c)(3)(C) (emphasis added)]
US Bank argues (dkt. 20, p.5:10-18) that two grounds exist to find that the case is presumptively not filed in good faith. First, under section 362(c)(3) (I)(aa), the Prior Case was dismissed after the debtor failed to file required case commencement documents (2:18-bk-10876-WB, dkt. 11). Second, under section 362(c)(3)(III)(bb), US Bank contends that the debtor has not shown a sufficient change in the debtor’s financial or personal affairs to conclude that the debtor will be able to propose a chapter 11 plan of reorganization will be confirmed and fully performed.
The tentative ruling is that US Bank is correct on both grounds.
Therefore the burden is on the debtor to show, by "clear and convincing" evidence, that she has filed her latest bankruptcy petition in good faith (whether she has done so is the topic of part "(4)" of this tentative ruling – this part "(3)" only addresses the presumptions and burden of proof).
Failure to file case commencement documents in Prior Case. The debtor’s motion acknowledges that the Prior Case was dismissed because she failed to file bankruptcy schedules, her statement of financial affairs ("SOFA"), and a proposed chapter 13 plan, but the motion offers no explicit explanation for those failings (dkt. 12, PDF p. 11, para. 6). Instead, the debtor states that she was "unable to propose a feasible plan under a Chapter 13 bankruptcy because she was not able to afford the arrears over a five year period." (Id., PDF p. 6, paragraph F) (emphasis added). In other words, the debtor implies that her failure to file documents in her Prior Case was intentional, because she realized that it was not feasible for her to attempt to restructure her debts in chapter 13.
In her reply papers, the debtor states that she "filed [the] prior case … when a real estate agent referred her to a petition preparer, James Rivas (‘Rivas’) to file a bankruptcy for her. She paid $625 including filing fee and filed a chapter 13 … [but] she did not know that Rivas did not file all the schedules and [the] Prior Case was dismissed for failure to file her schedules" (dkt. 27, PDF p. 2, lines 9-14). That explanation does not appear to be credible because in the Prior Case the debtor herself was served, at her address of record, with this Court’s order directing her to file the missing documents (case no. 2:18-bk-10876-WB, dkt. 8).
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The tentative ruling is that the debtor has not established a "substantial excuse" for failing to file her case commencement documents in the Prior Case. Therefore the presumption of lack of good faith applies, and it can only be rebutted by clear and convincing evidence.
Insufficient evidence of a substantial change in circumstances, or other reason to believe that this case will conclude in a confirmed and fully performed plan. The debtor’s declaration states that she has "taken steps to increase her income and cut her expenses" (dkt. 12, PDF p. 11, paragraphs 8-9). The debtor does not say what specific changes she has made with
respect to her non-rental income and expenses. As to rental income, she has now moved out of the Downey Property and is renting it to tenants, and she claims in the motion papers that this will generate an additional $3,500 in monthly income. The debtor’s amended bankruptcy Schedule I (dkt. 16, line 8.a.) increases this monthly rental income to $3,700.
(Note: This Court observes that the debtor’s original and amended bankruptcy Schedule I suffer from two defects. First, the instructions to line 8.a. clearly state that the debtor is supposed to list "net" income from rental property and attach a statement showing gross receipts, ordinary and necessary expenses, and net income.
Instead the debtor appears to have listed gross income in Schedule I, and expenses such as the mortgage, taxes, insurance, and maintenance in Schedule J.
Second, the debtor apparently is using amended bankruptcy Schedules I & J to reflect postpetition changes, which is wrong. Those schedules are supposed to reflect the facts as of the petition date.
The debtor should have filed a Declaration of Current/Postpetition Income and Expenses on local form F 3015.1.20.DEC.INCOME.EXPENSE. Nevertheless, these errors do not appear to have altered the math, so for present purposes this Court will disregard the debtor’s errors, with a direction to the debtor to correct these errors within seven days of the hearing date.)
As for the debtor’s reasons to believe that this case will result in a confirmed and fully performed plan, the debtor states that she intends to "cram down" US Bank’s first priority lien to $500,000 and amortize it over 30 years to reduce the monthly payment to US Bank to $2,684.11. (Id., PDF p. 5, paragraph 2.B. & C.). The motion does not specify the proposed interest
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rate or provide any evidence to support the $500,000 valuation.
Flaws in the debtor’s evidence of non-rental income: alternative reasons why there is a presumption of lack of good faith. US Bank argues (dkt. 20, pp.5:26-6:9) that (i) the debtor’s historical non-rental income is not fully disclosed (see SOFA, dkt. 1, at PDF p.35, item "4", listing only this year and omitting two previous calendar years); (ii) even limited to these few months, the SOFA reveals $600/mo. less non-rental income per month than the debtor has projected in her bankruptcy Schedule I, which calls into question the accuracy of that projection; (iii) her net non-rental income includes only $100/mo. for payment of State or Federal self- employment/withholding taxes (dkt. 26, at PDF p. 5) and there is evidence that the debtor has under-paid such taxes in the past (see dkt. 20, pp.5:28- 6:1); and therefore (iv) "Debtor’s figures are not currently supported and are likely to be negative not positive." The debtor’s reply papers (dkt. 27) fail to address these issues.
The tentative ruling that, in view of these deficiencies in the debtor’s evidence of non-rental income, the debtor has not adequately shown that, when she filed this case, she had sufficient basis for a good faith belief that this case is likely to result in a "confirmed plan that will be fully performed" within the meaning of 11 U.S.C. 362(c)(3)(C)(iii)(bb). It is true that, as described below, the debtor has provided evidence of increased rental income; but even with such rental income the debtor's cash flow is dependent upon sufficient non-rental income. Therefore, this is an alternative reason why there is a presumption that this case was not filed in good faith, which can only be rebutted by "clear and convincing" evidence.
Flaws in the debtor’s evidence of rental income appear to have been adequately addressed, for purposes of any presumptive lack of good faith. As for rental income and the debtor’s proposed retention of the Downey Property, US Bank argues (A) that the debtor would have to provide substantial "new value" to satisfy the "absolute priority rule" and thus be eligible to confirm a plan (dkt. 20, p.6:10-18, citing In re Zachary, 811 F.3d 1191 (9th Cir. 2016)), and (B) that even with an interest rate of 5.75% (i.e., only 1% above prime, notwithstanding the 100% loan-to-value ratio), the principal and interest payments would be $2,917.86 per month which, combined with $996.66 of property tax, insurance and maintenance (per the
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debtor’s bankruptcy Schdule J) would result in negative cash flow based on
$3,700/mo. in rental income. US Bank questions whether the debtor could obtain confirmation of any plan that would retain property with negative cash flow. Dkt. 20, p.7:3-9 (citing Loop Corp. v. United States Trustee, 379 F.3d 511, 515-16 (8th Cir. 2004) (negative cash flow sufficient to establish continuing loss to or diminution of estate for purposes of converting to chapter 7); In re Lindsay, 122 B.R. 157, 158 (Bankr. M.D. Fla. 1991) (denial of confirmation when debtors proposed to devote first 12 plan payments to non- income producing investment property)).
In her reply papers, the debtor provides evidence that in addition to renting out part of the Downey Property to one tenant for $3,500/mo. under a lease dated 2/15/18 (dkt. 27, Ex.3), she is about to rent out one bedroom and one bathroom to another tenant for $750/mo. under a lease dated 5/19/18 (id.), for a total of $4,250/mo. in rental income (see id., at Ex.1, Sch.I, line 8.a.). (Confusingly, the debtor’s pending cash collateral motion (dkt. 28, p.4, para. 3) lists her monthly rental income as $4,200, but the leases themselves call for total gross rents of $4,250/mo., so this Court will use the latter number.)
The debtor’s reply proposes to increase adequate protection payments to US Bank to $3,210/mo. (She also proposes to pay property taxes and property insurance directly rather than through escrow account(s) (dkt. 27, PDF p. 2:18-20), an issue on which this Court expresses no opinion at present.)
The tentative ruling is that this evidence of additional rental income adequately rebuts, for present purposes, US Bank’s evidence that the Downey Property is cash flow negative. True, the second lease was not actually entered into until after the petition, but the point is that as of the petition date it was reasonable for the debtor to believe that such a lease could be entered into, and therefore the debtor has established her good faith to the extent that the relied on such income in filing her bankruptcy petition on 5/1/18.
As for the confirmation issues, such as how much "new value" the debtor might be required to contribute, the tentative ruling is that such issues are premature. The issues are complex, and both US Bank and the debtor may have substantial arguments in their favor. See generally Procedures of Judge Bason, available at www.cacb.uscourts.gov (search for "new value" and "cramdown"). In other words, using the language of 11 U.S.C. 362(c)(3)
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(C)(iii), US Bank has not established that the debtor lacked a good faith "reason to conclude" that this case could result in a confirmed plan that can be fully performed.
That does not mean that the debtor has necessarily established that she filed her petition in good faith. The point is only that the Downey Property issues do not establish an alternative basis for a presumption against good faith. As noted above, however, that presumption is established on two alternative grounds – the debtor’s failure to file case commencement documents in the Prior Case, and the flaws in her evidence of non-rental income in this case. Therefore, the issue is whether the debtor has rebutted that presumption with clear and convincing evidence that she filed her petition in good faith.
Whether the debtor has rebutted the presumption of lack of good faith by "clear and convincing" evidence
The tentative ruling is that the debtor has not met her burden on the present record. But if this Court is persuaded to accept additional evidence then perhaps the debtor can establish, by clear and convincing evidence, that she filed her current bankruptcy petition in good faith.
Non-rental income. As noted above, the debtor has completely failed to address the flaws in her evidence of non-rental income. But for several reasons the debtor might be able to present sufficient evidence on that issue.
Assuming for the sake of discussion that the debtor’s non-rental income must be decreased to account for self-employment/withholding taxes, and for the vagueries of being an independent contractor, it is not clear on the present record how substantial those adjustments might be. Depending on the debtor’s testimony, historical records, and other evidence, she might be able to show by clear and convincing evidence that she had a good faith belief that no such adjustments would be necessary, or that they would be so minor that she could absorb them, and therefore that she filed her petition in good faith.
Rental income, and retaining the Downey Property. The second lease attached to the debtor’s reply appears to be "clear and convincing" evidence that, as of the petition date, the debtor had a reasonable basis to
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anticipate increasing her rental income, and to that extent a good faith basis to file her bankruptcy petition. Of course, that evidence was only presented with the reply, but the signature line on this lease is dated 5/19/18, so it could not have been presented earlier and the tentative ruling is to accept that evidence subject to providing US Bank with an opportunity to respond to it.
More generally, whether the Downey Property is cash flow negative, neutral, or positive depends in part on what amortizing payments the debtor must make to US Bank every month. Those amortizing payments depend, in turn, on the appropriate interest rate and collateral valuation.
US Bank’s opposition papers recognize that there is a colorable argument for an interest rate of 1% above prime, although of course that rate might or might not be what this Court would actually approve. The tentative ruling is that because a colorable argument can be made for such a rate, that is clear and convincing evidence that the debtor could file her petition in a good faith belief that such a rate might be approved. Therefore the more significant issue is valuation of the Downey Property.
The debtor’s motion and reply papers do not include any evidence in support of the $500,000 valuation used in her motion (dkt. 12, p.5).
Nevertheless, as the owner of the Downey Property she is competent to testify as to her opinion of its value, if this Court is persuaded to accept that additional evidence.
In addition, this Court notes that the debtor has filed a Motion For Order Determining Value of Collateral (dkt. 24), which contains an appraisal and a signed statement from an appraiser (not a declaration) that values the real property at $550,000. The point is not that this is admissible evidence in support of the present motion under section 362(c)(3) – it is not. Rather, the point is that, if this Court is persuaded to provide the debtor with an opportunity to present additional evidence, she may be able to offer clear and convincing evidence of her good faith in presuming that the Downy Property has a value in a range that could make a chapter 11 plan confirmable and feasible.
Conclusion
The tentative ruling is that there is a presumption that the debtor has not filed this case in good faith for two alternative reasons: first, she failed to file case commencement documents in her Prior Case without substantial excuse; and second, she has not presented enough evidence of a change in
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her non-rental income to believe in good faith, as of the petition date, that this case has a reasonable possibility of resulting in a confirmed and fully performed plan. The burden is on the debtor to rebut this presumption by clear and convincing evidence.
The debtor might be able to do so if this Court permits her to present additional evidence. The tentative ruling is to permit such evidence, subject to US Bank also being permitted to present rebuttal evidence. Such leeway appears to be warranted because of the considerable time pressure in bringing or opposing a motion under section 362(c)(3), as well as the complexity of the issues. Such evidence could be addressed in several ways.
Evidentiary hearing. This Court could set an evidentiary hearing. But because the hearing must be "completed" before the expiration of the 30- day period after the petition date (11 U.S.C. 362(c)(3)(B)) any such hearing would have to occur in the next day, unless US Bank is willing to waive the 30 day limit.
Declarations. Another alternative might be to make findings of fact and conclusions of law based on written declarations and briefs, without oral testimony. Given the expedited and summary nature of proceedings under 11 U.S.C. 362(c)(3), that might be appropriate.
APO. The debtor has expressed a willingness to enter into an APO (dkt. 27, p.2:23-25). If the dollar amount of monthly payments is sufficient, and if other terms and conditions are appropriate, that might be sufficient to show "good faith" under 11 U.S.C. 362(c)(3). As the saying goes, "the proof is in the pudding."
The parties are directed to address the foregoing issues at the hearing, including whether they will agree to an APO in resolution of this motion. Any such APO would be without prejudice to disputing all issues, including good faith, at any later stage of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/29/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron
Movant(s):
Karla Enid Ramirez Represented By Lionel E Giron
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Docket 6
Deny as moot. Appearances are not required.
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Reasons: This case was dismissed on 5/21/18 based on debtor's failure to file case commencement documents. See dkt. 12.
No attorney fees: This court presumes that counsel for the debtor will not charge any fees for the time spent on this motion (because counsel knew or should have known that the deadline to file required documents was 5/16/18 and did not timely file all required case commencement documents or timely file a motion to extend that deadline). If counsel intends to charge any fees then the procedures must be followed to dispute this tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Myrna Garcia Lorenzo Represented By Peter L Nisson
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Movant(s):
Myrna Garcia Lorenzo Represented By Peter L Nisson
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 7
Appearances required. There is no tentative ruling, but the debtor should be prepared to address the arguments presented in Nationstar Mortgage LLC dba Mr. Cooper's Opposition (dkt. 18).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Warren Obrian Williams Represented By Matthew D Resnik
Movant(s):
Warren Obrian Williams Represented By Matthew D Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 72
Deny for the reasons stated in the opposition papers (dkt. 78). See also OST (dkt. 73, p.3, para.7). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Vera Sylvia Mallet Represented By
Anthony Obehi Egbase Crystle J Lindsey
Movant(s):
Vera Sylvia Mallet Represented By
Anthony Obehi Egbase Crystle J Lindsey
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Trustee(s):
Kathy A Dockery (TR) Pro Se
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DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 85
Tentative Ruling for 5/29/18:
Continue to 6/26/18 at 10:00 a.m. to address the following issues. Appearances are not required on 5/29/18.
Reasons: At the 4/10/18 hearing, this Court continued this motion for the debtors to pursue a loan modification. The debtors have filed supplemental evidence of a trial modification notice (dkt. 88).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 87).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bradley Leo Richards Represented By
Michelle A Marchisotto Sundee M Teeple Cynthia L Gibson
Craig K Streed
Joint Debtor(s):
Guadalupe Richards Represented By
Michelle A Marchisotto Sundee M Teeple Cynthia L Gibson
Craig K Streed
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Matthew R. Clark III Sean C Ferry
Keith Labell
Trustee(s):
Kathy A Dockery (TR) Pro Se
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NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 83
Tentative Ruling for 5/29/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court continued this matter from 5/1/18 at the request of the parties to allow time to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 4/10/18 hearing on the motion, this court continued the hearing
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at the debtor's request to provide additional time to negotiate the terms of an adequate protection agreement. This Court directed the debtor's counsel to provide notice of the continued hearing but the docket does not reflect such notice - why not?
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief applicable in future bankruptcy cases. Deny the request for relief under 11 U.S.C. 362(d)(4) for lack of cause shown.
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you
10:00 AM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ladonna L Flores Represented By
Anthony Obehi Egbase Crystle J Lindsey Adaure C Egu
Edith Walters
W. Sloan Youkstetter
Movant(s):
Nationstar Mortgage, LLC. Represented By Bill Taylor Michael Daniels
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 89
Appearances required. There is no tentative ruling, but the debtor should be prepared to address the issues raised in this Court's Amended Order Setting Hearing on Debtor's Motion for Voluntary Dismissal of Chapter 13 Case (dkt. 94).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brenda Joyce Arlon Represented By Brad Weil
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Application for fees and expenses [Elissa D. Miller, Chapter 7 Trustee]
Docket 19
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Salvador Ramirez Represented By Harry Holmes
Joint Debtor(s):
Wendy E. Garcia Represented By Harry Holmes
Trustee(s):
Elissa Miller (TR) Pro Se
11:00 AM
Adv#: 2:17-01365 Naranjo v. Moisa et al
(1) Quiet Title; (2) Declaratory Relief
fr. 10/03/17, 11/17/17, 12/5/17, 4/17/18
Docket 1
Debtor(s):
Virginia Naranjo Represented By David R Chase
Defendant(s):
Rosa Moisa Pro Se
Edward Trevino Moisa Pro Se
Plaintiff(s):
Virginia Naranjo Represented By David R Chase
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
11 U.S.C. Sections 544, 548, 550, and For Setoff Pursuant to
11 U.S.C. Section 553 fr. 2/27/18
Docket 1
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
Plaintiff(s):
Official Committee of Creditors Represented By Christopher Celentino Peter W Bowie
Fariba Cohen Represented By
11:00 AM
Michael H Weiss
11:00 AM
Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
Docket 47
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
Plaintiff(s):
Official Committee of Creditors Represented By Christopher Celentino Peter W Bowie
Fariba Cohen Represented By
Michael H Weiss
11:00 AM
Docket 5
Appearances required but telephonic appearances are permitted (as usual) if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Subject to any oral (or written) opposition at the hearing, and any reply, the tentative ruling is:
to take judicial notice of the proceedings in the related case (In re Layfield & Barrett, case no. 2:17-bk-19548-NB), and based on that and the arguments and evidence in the motion papers:
to grant the motion;
to issue an order:
directing the appointment of an interim trustee pursuant to 11 U.S.C. 303(g) and 701 and Rule 2001 (Fed. R. Bankr. P.) for the reasons set forth in the motion, including in particular the risk of concealment, waste, or loss of assets of the estate, and the public interest in protecting clients and other creditors of Mr. Layfield and/or his firms, and
directing the interim trustee to assume all of the duties of a trustee under 11 U.S.C. 704; and
to set the bond at $-0- (subject to later adjustment as may be directed by the United States Trustee or, upon appropriate motion, by this Court).
Proposed order: Except to the extent that this Court is persuaded to adopt any different ruling, the movant is directed to attach a copy of this tentative ruling to a proposed order, which must be lodged via LOU within 7 days after the hearing date, thereby incorporating this tentative ruling as this Court's final ruling. See LBR 9021-1(b)(1)(B).
11:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Philip James Layfield Pro Se
1:00 PM
Docket 1
Appearances required by counsel for the debtor and by the debtor herself.
Current issues. This Court has no issues to raise sua sponte. The debtor should be prepared to discuss how she plans to reduce her monthly expenses to generate sufficient net monthly income to fund a plan.
Deadlines/dates. This case was filed on 4/27/18.
Bar date: 8/3/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/27/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/7/18 at 1:00 p.m., brief status report due 7/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Judith L. Tallarico Represented By Lewis R Landau
1:00 PM
1:00 PM
Docket 7
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Amended Schedule I (dkt. 26). Bankruptcy Schedule I, paragraph 8a, requires a separate statement for any rental property showing gross receipts, ordinary and necessary expenses, and net income. The debtor has not complied. Why not?
Budget motion (dkt. 17, 29). Nothwithstanding the foregoing, this Court has reviewed the cash collateral motion (dkt. 28), which appears to set forth the gross receipts, expenses, and net income of the subject property. Based on the presumption that this is included in the budget for which the debtor seeks approval, the tentative ruling is to grant the budget motion as amended (dkt. 29), on an interim basis, subject to a final hearing at the same date and time as the continued status conference set froth below. By no later than 6/8/18, the debtor must (i) correct the above-referenced omission from bankruptcy Schedule I and the budget motion, (ii) provide notice of the final hearing on this motion via U.S. Mail to all parties in interest, and (iii) file a proof of service.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a
1:00 PM
later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron
1:00 PM
Docket 17
Please see the tentative ruling for the status conference (calendar no. 2, 5/29/18 at 1:00 p.m.).
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron
Movant(s):
Karla Enid Ramirez Represented By Lionel E Giron
1:00 PM
Docket 155
The application and supporting declaration of Ms. Anyama are unsigned (dkt. 155). Subject to filing an errata with such signatures, the tentative ruling is to excuse the lack of the debtors' supporting declaration (see dkt. 158), grant the application, and award fees of $18,605.00 and expenses of $660.05 for a total of $19,265.05. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
Movant(s):
Charles Elvin Lamay Represented By
1:00 PM
Onyinye N Anyama
Silvana Marie LaMay Represented By Onyinye N Anyama
1:00 PM
Into Post-Petition Insurance Premium Financing Agreement
Docket 186
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to address the issues raised in the limited objection (dkt. 232) filed by the official committee of unsecured creditors (the "Committee") and whether they are sufficient addressed by the debtor's supplement (dkt. 276, filed 5/23/18) to the motion (dkt. 186).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
1:00 PM
Docket 177
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Levene, Neale, Bender, Yoo & Brill Represented By
Daniel H Reiss
1:00 PM
Docket 178
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Cohnrenick LLP Pro Se
1:00 PM
Docket 179
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Haberbush & Associates, LLP Represented By Lane K Bogard
1:00 PM
Docket 1
Tentative Ruling for 5/29/18:
Continue to 8/18/18 at 1:00 p.m., brief status report due 8/4/18, based on the debtor's status report (dkt. 140), with those dates all subject to being mooted if a final decree is issued before that time. Appearances are not required on 5/29/18.
Current issues. This court has no issues to raise sue sponte.
Deadlines/dates. This case was filed on 1/1/17, and the debtor's plan was confirmed on 10/24/17 (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 5/29/18 at 1:00 p.m., brief status report due 5/15/18, all subject to being mooted if a final decree is issued before that time. Appearances are not required on 2/27/18.
Current issues. This court has no issues to raise sue sponte.
Deadlines/dates. This case was filed on 1/1/17, and the debtor's plan was confirmed on 10/24/17 (dkt. 128).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Continue to 2/27/18 at 1:00 p.m., brief status report due 2/13/18, all subject to being mooted if a final decree is issued before that time. Appearances are not required on 12/12/17.
Current issues. This court has no issues to raise sue sponte.
Deadlines/dates. This case was filed on 1/1/17, and the debtor's plan was confirmed on 10/24/17 (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rescue One Ambulance Represented By Michael Jay Berger
1:00 PM
fr. 3/21/17, 4/4/17, 05/09/17, 06/13/17, 7/11/17, 8/22/17, 10/17/17, 12/19/17, 2/27/18
Docket 1
Take the matter off calendar as moot in view of this court's order granting debtor's motion for entry of discharge and final decree (dkt. 145).
Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria Elizabeth Roman Represented By
Anthony Obehi Egbase Crystle J Lindsey Kevin Tang
Edith Walters Clarissa D Cu
1:00 PM
PIERRE CASANOVA
vs DEBTOR
Docket 210
Tentative Ruling for 5/29/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 5/22/18, this court granted the motion for relief from the automatic stay, but set this continued hearing as a holding date to address any issues with the proposed form of order. As of the preparation of this tentative ruling, this court has not received a proposed order. Therefore, the parties should be prepared to address the status of lodging a proposed order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Appearances required. Given that any reply may be presented at the hearing (see order shortening time, at dkt. 217), and to encourage the parties to reach a consensual resolution, there is no tentative ruling.
If appearances are not required at the start of this tentative ruling but you
1:00 PM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Pierre Cassanova Represented By Sandford L. Frey Merak E Eskigian
2:00 PM
Adv#: 2:17-01412 Evanston Insurance Company v. Layfield & Barrett, APC et al
fr. 12/5/17, 12/19/17
Docket 1
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Layfield & Barrett, APC Pro Se
Philip J. Layfield Pro Se
Joseph Barrett Represented By Damion Robinson
Todd D. Wakefield Pro Se
Terry Bailey Pro Se
Plaintiff(s):
Evanston Insurance Company Represented By Michael F Perlis Daniel A Solitro
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
1/23/18, 02/13/18, 5/1/18
Docket 1
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 4, 5/29/18 at 2:00 p.m.).
Tentative Ruling for 5/1/18:
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required.
Current Issues.
B&B Liquidating, LLC (2:18-bk-11744-NB). On 2/16/18 B&B Liquidating LLC ("BBL") filed a chapter 11 petition for relief before this court. In its "first-day" motions, BBL details the troubles B&B Bachrach ("BBB") encountered post-confirmation, which resulted in the need to liquidate. See e.g., BBL Liquidating Motion, dkt. 17.
BBB should be prepared to address the debtor's progress in liquidating the estate.
2:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Continue to 4/17/18 at 2:00 p.m. in view of the debtor's post-confirmation status report (dkt. 313). Brief status report due 4/3/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue to 2/13/18 at 2:00 p.m., in view of (a) the debtor's status report (dkt. 313) and (b) the inability of the Office of the United States Trustee to appear on 1/23/18 in view of the shutdown of much of the federal government. Note: Prior to 2/13/18 this court anticipates posting a tentative ruling for a further continuance to 4/17/18 at 2:00 p.m., unless a party in interest files a status report no later than 2/6/18 requesting to be heard on 2/13/18. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Tentative Ruling for 11/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Continue to 11/7/17 at 2:00 p.m. to be heard concurrent with the fee applications. Appearances are not required on 10/17/17.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/12/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any outstanding disputes with landlords, or other issues that are appropriate for disposition at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
B&B Bachrach, LLC Represented By Brian L Davidoff
2:00 PM
Docket 150
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
Clear Thinking Group LLC Pro Se
2:00 PM
Docket 19
Tentative Ruling for 5/29/18:
Continue as set forth below. Appearances are not required on 5/29/18.
Current issues. This Court has reviewed the debtor's status report (dkt. 171), and other related pleadings.
Untimely Status Report and April MOR. This Court's tentative ruling for 5/1/18 (see below) directed the debtor to file a brief status report by 5/15/18, but the debtor did not file a status report until 5/18/18. Further, debtor did not file its April MOR until 5/23/18. The debtor is cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: 8/31/18
Continued status conference: Continue to 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
2:00 PM
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
Current issues.
Background. At a post-confirmation status conference on 4/17/18 for B&B Bachrach (2:17-bk-15292-NB), debtor's counsel discussed the status of that case as well as the B&B Liquidating case. At counsel's request, this Court set a tentative bar date of 6/29/18, but advised counsel that this Court would hold off on issuing the bar date order (and may push the bar date back) pending resolution of the claims/noticing agent issues raised sua sponte by this Court.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to grant the motion on a final basis, as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), the amended budget (dkt. 65), and the second amended stipulation (dkt. 141). The debtor is directed to serve and lodge a proposed order via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Tentatively set as 6/29/18. DO NOT serve any notice at this time (this Court will prepare an order after the claims/noticing issues are resolved)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: continue to the date set forth at the start of this tentative ruling, brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances are not required.
2:00 PM
Current issues. This Court has reviewed the debtor's status report (dkt. 78) and the other filed documents and records in this case.
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an a final basis.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on a final basis.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on a final basis.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to grant the motion on a final basis.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to authorize consensual use of cash collateral as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), and the amended budget (dkt. 65).
Proposed Orders. The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 7/31/18 DO NOT serve any notice at this time (this Court will prepare an order after the status conference)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: 5/29/18 at 2:00 p.m., brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/22/18:
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Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear (and pursuant to LBR 9075-1, any response may be presented orally).
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. As of the time when this tentative ruling has been prepared, there is no proof of service of the debtor's motions. The following tentative rulings are subject to (i) adequate proof of service and (ii) any oppositions presented at or prior to the hearing. In addition, rather than stating at length this Court's reasoning, the following tentative rulings adopt, to the extent relevant, the reasoning of this Court regarding similar motions in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46-47).
Notice/Service. Pursuant to LBR 9075-1(a)(2)(B), this Court has already orally and conditionally granted the debtor's request to shorten time on the motions identified below, subject to the right of any party in interest to object at or before the hearing to the adequacy of notice. With those limitations, the tentative ruling is to find notice adequate and grant the debtor's requests in its motions (e.g., dkt. 5, p.3:3-5) to excuse any requirement for telephonic notice provided that overnight delivery or other permissible expedited service (e.g., personal delivery, or email as permitted by applicable rules) has been delivered no later than 24 hours prior to this hearing to all persons with a pecuniary interest that could be adversely affected by the relief requested in each motion.
Immediate relief. With respect to any immediate relief described below, the tentative ruling is that the debtor has shown sufficient cause for such immediate relief under Rule 6003 (Fed. R. Bankr. P.), to the extent applicable, and the other rules and procedures governing relief on an emergency or expedited basis.
Limit Notice Motion (dkt. 3). The tentative ruling is to grant this motion, subject to the following adjustments. First, the Limited Service List must be augmented to include (i) junior lienholder Emerald Capital Funding, LLC ("Emerald") and (ii) the debtor's own bankruptcy counsel (because the motion apparently contemplates that all parties in interest - not just the debtor
- will be authorized to use the Limited Service List). Second, this Court contemplates limitations that parallel this Court's modifications to the parallel
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order in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 53).
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on the following conditions on an interim basis, with a final hearing at the same time as the continued status conference set forth below. No later than 2/23/18 the debtor must file a declaration of its CFO or other appropriate person certifying that, first, the debtor has taken measures to assure that prepetition debts are not paid out of its existing accounts (e.g., stopping payment on prepetition checks, except to the extent authorized by this court), and second, the debtor is maintaining sufficiently detailed books and records that, if it becomes necessary to analyze the debtor's finances as of the petition date, such analysis will not be impaired by the non-closing of the debtor's prepetition accounts.
Lease Rejection Motion (dkt. 7). The tentative ruling is to grant the motion on a final basis.
Employee Wages Motion (dkt. 8). The tentative ruling is to grant this motion immediately and on a final basis as to the employees, and to grant it as to the retention of Modern HR, Inc. ("HR") either immediately or at a continued hearing if the debtor can provide an offer of proof or evidence that HR's rates are within normal market rates for comparable services.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to approve the retention of Great American Group LLC and Tiger Capital Group LLC (collectively, "Liquidation Consultant") subject to the filing, no later than 2/23/18, of a satisfactory statement of Liquidation Consultant's distinterestedness on Local Form F 2014-1.STMT.DISINTEREST.PROF. In addition, the tentative ruling is to authorize the proposed sales of the debtor's inventory and furniture, fixtures and equipment ("FF&E"), free and clear of any liens, claims, encumbrances or other interests of all persons/entities who have been served with the motion, with all such interests to attach to proceeds of such sales, under 11 U.S.C. 363(b) and (f)(1), (2) and (5), for the reasons stated in the motion papers. In addition, the tentative ruling with respect to compliance with nonbankruptcy liquidation laws, restrictions in
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leases, and abandonment of property is to track the limitations in this Court's interim order on the parallel motion in the Bachrach case (no. 2:17-bk-15292- NB, dkt. 71). In addition, the tentative ruling is to grant all such relief on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Collateral/DIP Financing (dkt. 21, 22). The parties should be prepared to address the following issues. (i) Is there any evidence that the debtor is "unable" to obtain credit by granting a "senior or equal lien" to the lien of Siena Lending Group, LLC ("Siena"), within the meaning of 11 U.S.C. 364(d)(1)(A)? (ii) Why would it be appropriate for this Court to approve a roll- up, cross-collateralization, and other provisions that generally are disapproved (see dkt. 22)? (iii) Why should this Court grant broader relief in this case than it did in approving a similar motion in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46, Ex.A, pp.5-9, and dkt. 50)? The tentative ruling is to authorize either consensual or non-consensual use of cash collateral and, if the terms can be modified sufficiently to be acceptable, the proposed DIP financing, on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Notice of continued hearings. The tentative ruling is to set a deadline of 2/27/18 for the debtor to file and serve a notice of the final hearing on all motions that are only granted on an interim basis, and to set the same deadline for the debtor to file any supplements or amendments to such motions, with deadlines of 3/6/18 for any opposition and 3/13/18 for any reply.
Proposed Orders. This court intends to file these tentative rulings on the docket (with the caption, "Memorialization Of Tentative rulings" or the like). Thereafter, if appropriate, all orders can grant or deny relief "for the reasons stated in the Memorialization Of Tentative Rulings (dkt. ), as modified or supplemented on the record at the hearing" (or similar language). The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
In view of the shortened time on the foregoing motions, parties in interest may appear and dispute the foregoing tentative rulings without prior notice to the debtor or the court (contrary to the usual requirements for "tentative rulings" under Judge Bason's Procedures, posted at www.cacb.uscourts.gov).
Deadlines/dates. This case was filed on 2/16/18.
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Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: March 20, 2018 at 2:00 p.m., status report due 3/6/18. (see order, dkt. 18).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
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Docket 139
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference (calendar no. 10, at 2:00 p.m. on 5/29/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Non-Residential Real Property Located at 2727 E. Del Amo Blvd., Ranch Dominguez, CA; (3) For Relief from Automatic Stay; and
(4) Related Relief
Docket 184
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference (calendar no. 10, at 2:00 p.m. on 5/29/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Joe Murez Exempt Trust Represented By Richard H Golubow
2:00 PM
Docket 177
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference (calendar no. 10, at 2:00 p.m. on 5/29/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Levene, Neale, Bender, Yoo & Brill Represented By
Daniel H Reiss
2:00 PM
Docket 178
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference (calendar no. 10, at 2:00 p.m. on 5/29/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Cohnrenick LLP Pro Se
2:00 PM
Docket 179
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference (calendar no. 10, at 2:00 p.m. on 5/29/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Haberbush & Associates, LLP Represented By Lane K Bogard
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Docket 1
Revised Tentative Ruling for 5/29/18:
Appearances required.
Current issues.
Debtor’s Motion to Extend Time to Assume or Reject Lease (dkt. 139). Debtor seeks an extension of time to assume or reject its lease of commercial real property located at 2727 E. Del Amo Blvd., Rancho Dominguez, CA 90221 (the "Property") with Joe Murez Exempt Trust ("JMET" or "Landlord") through June 4, 2018. But in connection with Landlord's currently motion (dkt. 184, see discussion below), the debtor concedes that there are incurable defaults that prevent it from assuming the lease and states that it intends to vacate and surrender the Property by May 31, 2018 (dkt. 197, PDF p. 7, lines 17-19 & Wallace Declaration, paragraph 14). Additionally, on May 7, 2018, debtor served its subtenants with 30-day notices to terminate rental agreement with an expiration date of June 6, 2018 (id., Ex. A).
In Landlord's motion (dkt. 184, see discussion below), it seeks possession of the Property effective as of June 5, 2018 and appears to have consented to an extension through that time (see dkt. 184, PDF p. 4, lines 26- 27).
The tentative ruling is to grant the debtor's motion and extend the deadline to assume or reject the lease to May 31, 2018. The effects of that date on the subtenants and the Landlord are addressed below.
Landlord's Motion for Administrative Claim and Possession of Property (dkt. 184).
Base rent, late fees, interest, CAM, taxes, attorneys' fees and costs. Pursuant to 11 U.S.C. 365(d)(3), Landlord is entitled to an allowed
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administrative expense for the full amount of rent accrued during the period following the order for relief through the lease rejection, regardless of the actual value conferred by the lease upon the estate. See Pacific-Atlantic Trading Company, 27 F.3d 401 (9th Cir. 1994); In re Cukierman, 265 F.3d 846 (9th Cir. 2001). Section 365(d)(3) requires immediate payment of lease obligations so that the landlord is not left providing uncompensated services. In re Cukierman, 265 F.3d at 851-52.
In this case, Paragraph 4.1 of the Lease provides: "All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be Rent." Pursuant to paragraphs 1.5, 4.3, 10.2, 13.4, 13.5, and 31, Landlord is entitled to an allowed administrative expense for payment of base rent, late fees, interest, CAM, taxes, and attorneys' fees and costs. On the record before this Court, Landlord holds an estimated administrative expense in the amount of $79,965.01 ($48,626 (May rent) + $4,862.20 (late fee) + $11,661.31 (real property taxes) + $14,815.5 (attorneys fees) = $79,965.01). Landlord may supplement the record to establish a valid basis for any additional amounts it may be entitled to under the Lease (e.g., prorated June rent if the debtor has not turned over the premises as of 5/31/18).
No superpriority. Section 365(d)(3) does not authorize a superpriority over other administrative expenses. In re LPM Corp., 300 F.3d 1134 (9th Cir. 2002). It is possible that the estate will be administratively insolvent (although the estate's assets and its administrative claims are largely moving targets until the conclusion of any bankruptcy case) so if Landlord had slept on its rights and were seeking prior months' rent it would not be entitled to payment at this time; but that is not the situation.
Landlords are entitled to current payments. Other administrative claimants are not. There is no evidence that this Landlord has slept on its rights.
Reconciling the lack of priority with the entitlement to current payments, the tentative ruling is that Landlord is entitled to immediate payment of a pro rata share of funds that are available to pay estimated accrued administrative expenses to date. This is essentially the alternative relief requested by Landlord (see dkt. 200, p.4:4-8).
Because the interim fee applications (discussed below) seek approximately $305,000 in fees and expenses, and because Landlord's claim is approximately $79,965.01, it appears that the rough total of accrued
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administrative expenses is approximately $385,000, of which Landlord holds roughly $80,000, or approximately 20% ($80,000/$385,000 = 20.8%).
Therefore, the tentative ruling is that Landlord is entitled to immediate payment of approximately 20% of the $47,000 in unrestricted funds currently in debtor's possession (dkt. 197, PDF p. 13, paragraph 13), or approximately
$9,400.
Landlord has not established that the funds are held in trust for it. This Court is not persuaded that the $47,000 in funds debtor has on hand is being held in trust for Landlord. Landlord has not carried its burden of establishing that, under California law, an express trust exists that excepts these funds from estate property. See Golden Mortg. Fund # 14 v. Kennedy, 171 B.R. 79, 84 (9th Cir. BAP 1994) ("A creditor has the burden to prove that the funds in the debtor's possession should be held in trust for that creditor's benefit").
Surrender and Writ of Possession. Landlord has discretion whether to extend the time for the debtor to assume or reject the Lease beyond the statutory maximum, or permit occupancy after rejection, absent nonbankruptcy law that would permit occupants to continue in possession. As set forth above, the tentative ruling is that the lease will be deemed rejected on 5/31/18.
Because neither the subtenants nor any other party in interest has articulated a sufficient basis for the subtenants to continue to occupy the Property following rejection of the Lease, the tentative ruling is to grant Landlord's request for a writ of possession directing any subtenants to surrender and vacate the property effective 6/6/18. Landlord is instructed to review LBR 7064-1 and include the necessary language set forth in 7064-1(e) into the proposed order.
Relief from stay. The tentative ruling is to grant Landlord relief from the automatic stay under 362(d)(1).
Waiver of 14-day stay. The tentative ruling is to waive the
14-day stay.
Interim Fee Apps of Levene Neale Bender Yoo & Brill (dkt. 177); CohenReznick LLP (dkt. 178); and Haberbush & Associates LLP (dkt. 179), and related documents (dkt. 200, 214). The tentative ruling is to approve the applications on an interim basis, subject to final review and approval at the conclusion of the case, but deny the requests for immediate payment of fees
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and expenses given the debtor’s limited funds on hand, except that Haberbush & Associates may draw down on its pre-petition retainer, subject to the possibility of disgorgement in future.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/7/18 at 2:00 p.m., to be heard concurrently with the other matters set for hearing in this case. Brief status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
This court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 5/22/18:
Appearances required.
Current issues.
April MOR (dkt.192). On PDF p. 3, the debtor identifies a payment made to "Transport" on 4/26/18 in the amount of $55,515.00 for "dispatch and brokerage svc." What is this payment for? Is it an "ordinary course" transaction?
Motion to Disqualify Truck Driver Counsel (dkt. 125). This Court issued an order (dkt. 169, amended dkt. 175) continuing this motion and set
(i) a 5/15/18 deadline for the Slattery Law Firm and Hirsch Law Firm to file supplemental papers addressing who properly represents the Truck Drivers;
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and (ii) a 5/21/18 at noon deadline to file any responses.
This Court has reviewed the relevant papers. See dkt. 125, 126 & 127 (motion papers), dkt. 143 (Hirsch opposition), dkt. 145 (Slattery opposition), dkt. 156, 157 (debtor's reply), dkt. 161 (Slattery decl.), dkt. 167 (Slattery Rule 2019 statements), dkt. 189 (debtor's authorities re attorney-client privilege as applied to retainer agreements), dkt. 199 (Hirsch supp. opposition), dkt. 201 (Slattery decl.), dkt. 202 (Hirsch supp. reply), dkt. 203 (Hirsch evid. obj. to Slattery decl.), dkt. 204 (Rivera|Shakleford opp. re S.H. Chung, R.M. Rubio,
H.D. Alvarez & G. Perez Silva).
There is no tentative ruling, but the parties should be prepared to address the arguments set forth in the filed papers.
(c) Objection to Claim Nos. 11, 37, 38, 40, 44, 45, 50 (dkt. 108, 109,
111, 113, 115, 117, 119). The proofs of claim were filed by the Hirsch Law Firm and the claim objections/notices were served on the Hirsch Law Firm and Slattery Law Firm. However, based on the debtor's pending motion to disqualify both firms, the tentative ruling is to continue the hearings on these claim objections to 6/19/18 at 2:00 p.m., pending resolution of the motion to disqualify. At the continued hearings, the parties should be prepared to address whether it would be appropriate for this court to set continued oppositions deadlines.
Note: Counsel did not comply with Judge Bason's posted procedures (at www.cacb.uscourts.gov) requiring a cost/benefit analysis for any claim objection (although this court's own cost/benefit analysis appears to favor seeking to reclassify these claim). In future, counsel should comply with those posted procedures.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/29/18 at 2:00 p.m., to be heard concurrently with the other matters set for hearing in this case. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/1/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Motion to Approve Compromise (dkt. 36). The parties should be prepared to address the status of any settlement negotiations with respect to the pending motion to approve compromise.
Status Report. At the last status conference on 2/13/18, this court directed the debtor to file a brief status report by 2/27/18. As of the preparation of this tentative ruling, the debtor has not complied. The debtor should be prepared to address why it failed to comply with this court's order.
Employment application: Creditors' Committee Counsel (dkt. 47, 65). The objection by certain truck drivers (dkt. 63) has been withdrawn (dkt. 89). The debtor's limited objection (dkt. 55) and the reply papers (dkt. 85, 86) raise issues that are best addressed in connection with any application for compensation, at which time this Court can evaluate whether the hourly billing rates are commensurate with the nature of the work performed, the time spent on each task, and the other factors under 11 U.S.C. 330. Therefore the tentative ruling is to overrule the objection and authorize the employment.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status
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report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues.
The parties should be prepared to address (a) whether the Court should order mandatory mediation of the proposed settlement, proposed assignment of the lease, and related issues; (b) whether concurrently this Court should set deadlines such as a discovery cutoff or, conversely, whether this Court should temporarily issue a stay of some litigation; and (c) whether the parties would prefer that this Court provide some tentative rulings or preliminary thoughts on various issues, or if instead it would foster possible settlement or serve other beneficial goals for this Court not to do those things at this stage of the case.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
n/a
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 2/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: This court will discuss setting a deadline for the filing of a draft plan/disclosure statement at the status conference.
Continued status conference: 2/13/18 at 1:00 p.m., brief status report due 1/30/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
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to Utility Companies for Post-Petition Services and Prohibiting Alteration, Refusal, or Discontinuance of Utility Services
Docket 7
Subject to any opposition at the hearing, the tentative ruling is to grant the motion on an interim basis with a final hearing on 6/12/18 at 2:00 p.m.
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
R44 LENDING GROUP, LLC a Represented By
Jeffrey S Shinbrot
8:30 AM
Docket 83
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Joyce IIagan Canlas Represented By
Hasmik Jasmine Papian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 19
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Estela Toledo Represented By William G Cort
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 29
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eduardo Vincent Toledo Represented By Sam Benevento
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 23
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Remy L Steverson Represented By David Jacob
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 24
Grant in part and continue in part to 6/28/18 as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Santander Consumer USA Inc.'s ("Santander") Proof of Claim (Claim no. 2-1).
Reasons:
The debtor has carried her burden of proof under 11 U.S.C. 506(a) and FRBP 3012. On 4/18/18 Santander filed a proof of claim asserting a total claim of $35,227.20, of which Santander contends $18,750 is secured by the debtor's 2015 Chevrolet Traverse (the "Vehicle"). The debtor seeks an order determining the value of the Vehicle pursuant to 11 U.S.C. 506(a) and FRBP 3012. In support of debtor's motion, debtor attached an email from edmunds.com dated 4/24/18 listing a "Dealer Retail" value for the Vehicle of
$17,873. As of the preparation of this tentative ruling, Santander has not filed an opposition. Therefore, the tentative ruling is to grant the debtor's motion and value the Vehicle at $17,873.
Cost-Benefit Analysis. The Bason posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will
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exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
Based on this Court's review of Santander's proof of claim, it appears the benefit to the debtor in bringing this motion is $877 ($18,750 - $17,873). Accordingly, it appears the costs of preparing and litigating the motion (administrative expenses) may exceed the anticipated benefit (reduction in secured claim).
No later than 6/14/18 debtor's counsel must file a supplemental declaration explaining why the attorneys fees for this motion are justified.
No fees absent specific order. Counsel is prohibited from charging any fees in connection with the declaration described in the preceding paragraph.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Blas Mis Valdez Represented By Guy R Bayley
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 12
Deny for the reasons stated in Alaska USA Federal Credit Union's Opposition (dkt. 18). Appearances are not required.
Proposed order: Alaska USA Federal Credit Union is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gabriel Apolonio Alarcon Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Maria Luisa Alarcon Represented By
Ramiro Flores Munoz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
(n) and (w) to modify plan or suspend plan payments
Docket 26
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office and and Deutsch Bank Trust Company Americas, trustee for Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2006-Q08 ("Deutsche") to further continue this matter or
(2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 31) and Deutsche (dkt. 29).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Rodolfo Refuerzo Represented By Rebecca Tomilowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 90
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by the debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 92) and the debtor's response (dkt. 103).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Michael Walker Kerr Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 125
Deny. Appearances are not required. This court issued an Order (dkt. 128) setting the Reconsideration Motion for hearing on this calendar and directing debtor to file a declaration by May 23, 2018 to address noncompliance with the requirements for filing a reconsideration motion as listed in the undersigned Bankruptcy Judge's posted procedures (available at www.cacb.uscourts.gov). Debtor has not filed any such declaration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alicia L. Ramirez Represented By
Lauro Nick Pacheco Jr. Sunita N Sood
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 144
- NONE LISTED -
Debtor(s):
Joseph Lawrence Mignogna Jr Represented By Richard T Baum
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
of Fees and Expenses Following Dismissal or Conversion of Chapter 13 Case Subject to a Rights and Responsibilities Agreement (RARA) [11 USC Section 330(a)(4)(B);
LBR 3015-1(q)(6)]
Docket 53
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Mohamed Ibrahim Represented By Eliza Ghanooni
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 63
Debtor(s):
Boaz Tribelsky Represented By Michael F Chekian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 37
Grant (disallow claim number 5 in its entirety), without prejudice to any remedies (1) if the debtor does not surrender the vehicle (as he has promised to do) or (2) if the creditor takes acts to collect on a discharged debt as an in personam liability. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gerald Edward Young Represented By Erika Luna
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 41
Appearances required. The parties have raised a number of disputed issues, including issues of credibility (attorney Leslie Richards, Esq. blaming former attorney William G. Hill and vice versa), that appear to require an evidentiary hearing. The parties are directed to address when this Court should schedule such a hearing.
In addition, the parties should be prepared to address whether 11
U.S.C. 110 can encompass liability against an attorney, as argued by the United States Trustee ("UST"). See dkt. 41, pp.2, 7-9, & nn.2 & 8). The parties should also be prepared to address whether this Court should grant any additional time for the UST to file additional or amended papers with respect to Ms. Richards.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Johnnie L. Fields Represented By Leslie Richards
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 0
Revised Tentative Ruling for 6/7/18:
Continue to 6/28/18 at 8:30 a.m. to be concurrent with the debtors' self- calendared motion for permission to file a new bankruptcy case (dkt. 24) provided that the debtors are directed to serve that motion on the full creditor matrix via U.S. mail no later than 6/8/18. Appearances are not required on 6/7/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised by this court's Order to Show Cause (dkt. 10).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Christopher David Mercado Pro Se
Joint Debtor(s):
Alma Cornelia Mercado Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 4/5/18
Docket 51
Tentative Ruling for 6/7/18 (same as for 4/5/18):
Appearances required absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 51) and the debtor's opposition (dkt. 52).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
James Razumich Represented By Matthew D Resnik
Movant(s):
Kathy A Dockery (TR) Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 26
Tentative Ruling for 6/7/18:
Deny the motion for the reasons stated below. Appearances are not required.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Wells Fargo Bank, N.A.'s Opposition (dkt. 29), Debtor's Reply (dkt. 31), Appraisal (dkt. 44).
Reason: At the hearing on 4/5/18 this court continued the hearing at the parties' request to allow time for them to obtain a binding third party appraisal and, based on that appraisal, for the debtor to lodge a proposed order either granting or denying the motion. On 5/24/18, Wells Fargo Bank, N.A. ("WF") filed the binding appraisal (dkt. 44), which lists a fair market value of
$295,000. Based on this value, the debtor cannot avoid WF's junior lien because it is not entirely underwater ($295,000 - $259,822.71 (senior lien) =
$35,177.29 equity securing WF's junior lien). See In re Zimmer, 313 F.3d 1220, 1227 (9th Cir. BAP 2002) (Only the rights of a creditor holding an unsecured claim may be modified under 11 U.S.C. 1322(b)(2)); In re Lam, 211 B.R. 36 (9th Cir. BAP 1997) (same). Therefore, the tentative ruling is to deny the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/5/18:
Appearances required. At the hearing on 2/8/18 this court continued the hearing at the parties' request to allow time for them to obtain a binding third party appraisal. There is no tentative ruling, but the parties should be prepared to update this court on the status of their negotiations and when they expect this matter to be resolved.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/8/18 (same as for 12/7/17, 10/5/17 and 7/20/17): Appearances required. There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Sandra Delores Harding Represented By Kevin T Simon
Movant(s):
Sandra Delores Harding Represented By Kevin T Simon Kevin T Simon Kevin T Simon Kevin T Simon Kevin T Simon
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 12/7/17, 1/11/18, 03/08/18, 05/03/18
Docket 38
Tentative Ruling for 6/7/18:
Appearances required.
This matter has been repeatedly continued from 12/7/17 to the present. See, e.g., dkt. 54, 62. Now the debtor has once again extended negotiations on the attempted loan modification (see dkt. 64) and is seeking yet another continuance of the hearings on this claim objection and confirmation (dkt. 70, 71). Why has this matter not been resolved? Is the debtor failing to appear in proper prosecution of this matter (see Order, dkt. 72, denying further continuance)?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/3/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/8/18 hearing, this court continued the matter at the debtor's request for more time to finalize a loan modification and/or pursue mediation with the claimant (see dkt. 54). There is no tentative ruling, but the parties should be
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prepared to address the status of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/8/18:
Continue to 5/3/18 at 8:30 a.m. per the debtor's request for more time to finalize a loan modification and/or pursue mediation with the claimant (see dkt. 54). Appearances are not required on 3/8/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 12/7/17 hearing on this matter, this court was persuaded to continue this matter. What is the current status of this matter?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 12/7/17:
Deny for the reasons stated in the Opposition (dkt. 46). If the debtor wishes to obtain more discovery regarding older records, she can seek such discovery using the normal procedures for doing so (subject to the normal limitations on any discovery). Appearances are not required.
Note: Counsel did not comply with the Local Bankruptcy Rules' requirement to attach a copy of the proof of claim to the objection. Nor did counsel comply with Judge Bason's posted procedures (at www.cacb.uscourts.gov) requiring a cost/benefit analysis for any claim objection (although the nature of the claim, and the provisions of the debtor's latest amended plan, dkt. 37, suggest that the cost/benefit analysis is favorable to bringing any meritorious objection). In future, counsel should comply with those requirements.
Proposed order: Creditor National Funding, Inc. is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Xuri Worthing Webb Represented By Daniel I Barness
Movant(s):
Xuri Worthing Webb Represented By Daniel I Barness Daniel I Barness
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
Debtor(s):
Lawrence K Burkley Represented By Donna R Dishbak
Movant(s):
Lawrence K Burkley Represented By Donna R Dishbak
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 04/05/18, 5/3/18
Docket 40
Debtor(s):
Felisa Dee Richards Represented By Eliza Ghanooni
Movant(s):
Felisa Dee Richards Represented By Eliza Ghanooni Eliza Ghanooni
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 3/8/18, 4/5/18
Docket 20
Debtor(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Movant(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 4/5/18, 5/3/18
Docket 1
Tentative Ruling for 6/7/18:
Please see the tentative ruling for the status conference (calendar no. 23, 6/7/18 at 8:30 a.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 28, 5/3/18 at 8:30 a.m.).
Tentative Ruling for 4/5/18:
Please see the tentative ruling for the status conference and OSC (calendar no. 23, 4/5/18 at 8:30 a.m.).
Debtor(s):
Ronald Martinez Represented By Moises A Aviles
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 8
Tentative Ruling for 6/7/18:
Appearances are not required.
Current Issues.
Background. This case was commenced on 11/22/17. It has not been well prosecuted (see dkt. 37 (the "OSC") and this Court's previous tentative rulings, reproduced below). Now, however, it appears that the debtor's amended chapter 13 plan (dkt.69) might be capable of being confirmed. See also Amended Schedules I & J (dkt. 74), Debtor's Supp. Decl. (dkt. 71), Robert Martinez Decl. (dkt. 72), Proofs of Claim of Wells Fargo Bank, N.A. (Claim Nos. 1-1, 1-2, and 2-1).
Declaration of Robert Martinez (dkt. 72). The debtor's brother declares that he contributes $250 a month for the debtor's living expenses. He does not attach any evidence or proof of his income, but that can be addressed as follows. If this Court is persuaded to confirm the debtor's proposed plan (at the 9:30 a.m. hearing or any other time) then one condition of such confirmation could be to set a deadline of 6/28/18 for the debtor to file a contribution declaration from Ronald Martinez on the court's form F 3015- 1.09.DEC.CONTRIBUTION with appropriate proof of financial income and any other supporting documents. If the debtor fails to timely comply with the foregoing deadline, the Chapter 13 Trustee has the discretion to bring a motion to dismiss. That solution, or any other appropriate disposition, can be addressed at the 9:30 a.m. hearing.
No need for further status conferences. The tentative ruling is not to continue this status conference.
Discharge OSC. The tentative ruling is to discharge the OSC (dkt. 37). This Court will prepare an order doing so after this hearing.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/3/18:
Appearances required by the debtor and debtor's counsel. The tentative ruling is to dismiss this case, with a 180 day bar against being a debtor in bankruptcy, for the debtor's willful failure to appear in proper prosecution of this case. See 11 U.S.C. 109(g)(1).
Current Issues.
Background. This case was commenced on 11/22/17. The debtor's bankruptcy schedules assert that he has no debts other than a first and second deed of trust of his residence, both of which are oversecured. The debtor apparently fell behind on one of his deeds of trust (see Claim No. 2-1, item 9, listing $8,307.90 needed to cure defaults as of petition date, and Notice of Default at dkt. 59, PDF p.8).
The debtor filed a motion to avoid the second deed of trust lien that was defective in numerous respects, as set forth in the Tentative Ruling for 2/8/18 (reproduced below). That motion was denied.
This Court has warned the debtor and his attorney at prior hearings that if they continued to file improper papers, or to move this case forward, then this Court might have to find that they are willfully failing to appear in proper prosecution of this case. At the hearing on 4/5/18 this Court set a deadline of 4/19/18 for the debtor to file an amended plan and all other documents appropriate to move this case forward.
This Court has reviewed debtor's Amended Plan (dkt. 56), Amended Schedules I & J (dkt. 58), the Supplemental Aviles Declaration (dkt. 59), the proofs of claim filed by Wells Fargo Bank, N.A. as both senior and junior lienholder (Claim Nos. 1-1, 1-2, and 2-1), and the Debtor's Supplemental Declaration (dkt. 60).
Supplemental Aviles Declaration. The declaration makes no sense. For example, Mr. Aviles declares (dkt. 59, p.2:17-19): "If Wells Fargo Bank
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N.A. believed that the [debtor's prior bankruptcy case under] Chapter 7 had discharged the debt owed as to the arrearages [then] Wells Fargo Bank N.A. would not have proceeded with foreclosure proceedings due to the arrearages owed by debtor ...." That is ridiculous.
A discharge in bankruptcy applies to in personam liability, and has nothing to do with in rem liability. For example, if a debtor borrows $100 secured by collateral, that debtor may be able to discharge the $100 (plus interest and other charges) as in personam liability, but if the debtor wants to retain the collateral then the debtor has to pay the full $100 (plus interest and other charges) or alternatively file a proper motion to reduce the lien (which the debtor has not done and apparently cannot do under the facts of this case). In other words, a debtor cannot have it both ways: keep valuable collateral but not pay for it.
Amended Bankruptcy Schedules I & J (dkt. 58). First, the debtor's scheduled expenses appear to be far too low to be realistic. For example, the debtor only lists $65/mo for food. This is not a basis for any feasible chapter 13 plan. If the debtor is receiving a contribution from a third party then that should have been disclosed in the bankruptcy schedules and/or a supporting declaration.
Second, if the debtor's amended bankruptcy schedules I & J are to be believed, he has monthly net income of $606.42, after $757/mo. of mortgage expenses. But the debtor appears to ignore one of his two mortgages: one monthly payment is $767.53 (Claim No. 2-1, at PDF p.4, last column) and another is $470.08 (Claim No. 2-1, at PDF p.6, last column). That would leave monthly net income of only $125.81 ($606.42 - shortfall of $10.53 on one mortgage - $470.08 on the other mortgage = $125.81).
Amended Plan (dkt. 56). The debtor apparently contemplates plan payments of $256.17 per month for 36 months, although what his plan actually states is that the "base amount" (the total of all monthly payments) is only $256.17.
In any event, the $256.17/mo. would go to only two things: (i) paying the Chapter 13 Trustee's fee (11% of all distributions) and (ii) paying Class 2 (the $8,307.90 arrears) at $230.78/mo over 36 months with 0% interest. But the debtor cannot afford that because, as set forth above, he only has net income of $125.81/mo. (and even that assumes expenses that appear to be
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unrealistically low).
True, if the plan were extended to 60 months then the payments in Class 2 could be reduced to $138.65/mo. ($8,307.90 / 60 = $138.65), but that is still above $125.81, and it assumes 0% interest and living expenses that appear to be unrealistic.
(This Court notes that the plan is defective in another respect. The plan's liquidation analysis is internally inconsistent. It states that in a chapter 7 case there would be $0 available but that this would result in an estimated 11% dividend.)
The bottom line is that the debtor's proposed chapter 13 plan appears to be totally unrealistic. If there is any way for the debtor to make proper use of chapter 13 (e.g., if he could propose a sale of his property or a refinance), he has not pursued it. This case is over five months old and so far the debtor has made no progress at all.
(d) Dismissal With a Bar. At the hearing on 4/5/18, this Court cautioned the debtor and debtor's counsel that if they continued to file inadequate information, did not seek assistance from an experienced bankruptcy attorney, and otherwise failed to appear in proper prosecution of this case, then this Court might have to dismiss this case with a bar against being a debtor in a future bankruptcy case for some period of time. At the hearing they should address how the record in this case is consistent with anything other than a willful failure to appear in proper prosecution.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/5/18:
Appearances required by the debtor and debtor's counsel.
At a hearing on 2/8/18, this court denied the debtor's motion to avoid the junior liens of Wells Fargo and the City of Pomona, Housing Division on his
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principal residence under 506(d) for the reasons set forth below in this court's tentative ruling. In light of debtor's counsel's apparent lack of bankrupty experience, this court also set this status conference to determine whether the debtor has associated in, or obtained, new counsel and is properly prosecuting this case.
On 3/5/18, debtor's counsel requested a continuance of this hearing due to a death in the family. On 3/6/18, this court granted the request to continue the hearing and directed debtor and debtor's counsel, Mr. Aviles, to appear and show cause why sanctions, dismissal with a bar, or other relief should not be imposed (dkt. 37) (the "OSC").
There is no tentative ruling, but the debtor and debtor's counsel should be prepared to address the issues identified in the OSC.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/8/18 on motion to avoid lien:
(1) Deny for the reasons set forth in the opposition (dkt. 22) filed by Wells Fargo Bank, N.A. ("Wells Fargo") and the additional reasons set forth below, and (2) direct counsel to address at the hearing (a) why he should be allowed any fees for this motion, (b) whether he is competent to represent the debtor at all, and (c) whether he should be associating experienced bankruptcy counsel or arranging for a substitution of counsel and transfer of any fees received from the debtor. Appearances required by counsel for the debtor and by the debtor himself (counsel for the debtor must appear in person, but the debtor and any other parties in interest may appear by telephone if they follow Judge Bason's posted procedures for telephonic appearances, available at www.cacb.uscourts.gov).
Proposed order: Wells Fargo is directed to lodge a proposed order via LOU
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within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons for denial: The debtor seeks to avoid the junior liens of Wells Fargo and the City of Pomona, Housing Division's ("Pomona") on his principal residence pursuant to section 506(d). But on the record before this court (1) service is inadequate, (2) the evidence is inadequate, and (3) there is no basis to avoid either lien (in whole or in part) under section 506(d).
Service is inadequate
The proof of service (dkt. 8, last 2 pages) fails to comply with the rules for service. Service on Pomona does not comply with Rule 7004(b)(6).
This court also notes that service on Wells Fargo was defective, although Wells Fargo has waived any such defects by filing an opposition (in which it did not raise any deficiency in service). Among other things, Wells Fargo was not served to the attention of an officer as required by Rule 7004 (b)(3) & (h) (Fed. R. Bankr. P.) (incorporated by Rule 9014(b), Fed. R. Bankr. P.).
Evidence is inadequate
The form motion includes a section for describing the supporting evidence by exhibit numbers. See dkt. 8, p.4, section 3.c. That section is mostly blank.
Section 506(d) does not support avoidance of either lien
The motion papers include an appraisal valuing the property at
$265,000. The debtor states that the total value of all liens against the property is $207,417.65. Motion, p.3, lines 3-7 (1st DOT $89,545.97 + Wells Fargo's 2nd DOT $65,157.55 + Pomona's 3rd DOT $48,714.13 =
$207,417.65). Therefore, according to the debtor's own evidence both liens are fully secured and cannot be avoided under section 506(d).
It appears that counsel for the debtor has mistakenly conflated two sections of the Bankruptcy Code:
section 506(d) (which only permits avoidance of liens to the extent they are "under water" (and sometimes not even then - see 11 U.S.C. 1322(b) (2)), and
11 U.S.C. 522(f), which permits avoidance of judicial liens to the
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extent that they impair a valid homestead exemption: there is no showing that the liens of Wells Fargo or Pomona are "judicial" liens, and in any event the motion neither seeks nor establishes a sufficient basis for avoidance under section 522(f).
The debtor's reply (dkt. 24) cites irrelevant cases. One case was decided under section 522(f) (and much of its discussion involves matters that have since been mooted by the 2005 revisions to the Bankruptcy Code). See In re Smith, 92 B.R. 287 (Bankr. S.D. Ohio 1988). The debtor cites one other case, for the proposition that "a Motion to Strip [a junior] mortgage may be filed, despite [the fact] that Debtor already obtained a Chapter 7 Discharge." Dkt. 24, p.1:24-25 (citing In re Blendheim, 803 F.3d 477 (9th Cir. 2015)). That issue is irrelevant to whether the lien is partially or wholly unsecured; and on the debtor's own facts the subject liens are wholly secured.
Counsel's fees and competence
Bankruptcy is a complex specialty. It appears that the debtor's counsel is not sufficiently familiar with the Bankruptcy Code and Rules to represent the debtor, either in this specific matter or more generally in this bankruptcy case. Awarding fees for the counterproductive work on this matter would only harm the debtor and creditors, and going forward this Bankruptcy Court is concerned about the potential for irreparable harm to the debtor and creditors. Counsel should be prepared to address (a) whether new counsel should be substituted in and (b) whether any fees that the debtor or the Chapter 13 Trustee may have paid to such counsel should be transferred to new counsel.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
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Debtor(s):
Ronald Martinez Represented By Moises A Aviles
Movant(s):
Ronald Martinez Represented By Moises A Aviles
Trustee(s):
Kathy A Dockery (TR) Pro Se
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fr. 5/3/18
Docket 26
Tentative Ruling for 6/7/18:
Deny without prejudice, for the reasons stated below. Appearances are not required.
Reasons.
Background. This Court's 5/3/18 tentative ruling (see below) continued the matter to this date and set a deadline of 5/24/18 for the debtors to (a) file a supplemental declaration from an appraiser with a fair market value for the subject property or (b) withdraw the motion. As of the preparation of this tentative ruling, the debtors have not filed any new evidence to support the valuation asserted in the motion, so the tentative ruling is to deny the motion because the debtors have failed to carry their burden of proof.
No prejudice. This Court is aware that there may be ongoing settlement negotiations between the parties (dkt. 29). Nothing in the foregoing ruling prevents the parties from continuing to negotiate a resolution of their disputes. If they are unable to reach a consensual resolution then the debtor may file an amended motion (if the evidence supports such a motion).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/3/18:
Appearances required.
This is the second time known to this Court that counsel for the debtor has submitted papers with the same obvious defect (using liquidation value when the statute requires fair market value). See 11 U.S.C. 506(a) (further explained below). In the prior case with the same issue, counsel withdrew the motion after this Court pointed out the defect. See In re Graciela Redden (Case No. 2:17-bk-17-25324, dkt. 21 & 27), and see tentative ruling for 4/5/18, 8:30 a.m., calendar no. 5.
Counsel must appear and explain why she continues to file papers that appear plainly to violate 11 U.S.C. 506. This Court presumes that counsel will not charge the debtors or the estate for this appearance. If counsel believes that charges are appropriate, she must argue for such charges at this hearing.
The tentative ruling is to continue this motion to 6/7/18 at 8:30 a.m., with deadline of 5/24/18 for the debtors to file and serve supplemental papers addressing the valuation issue. Alternatively, if the debtors prefer, they may file and serve a withdrawal of the motion.
Explanation: The evidence in support of the motion (dkt. 26, Ex.4) states that the appraised value is based on a "liquidation" value which is defined as, among other things: "[t]he most probable price ... under the following conditions: (1) consummation of a sale within a short period of time ... (4) the seller is under extreme compulsion to sell ... (7) a normal marketing effort is not possible due to the brief exposure of time." These assumptions are inconsistent with 11 U.S.C. 506(a)(1), which requires that the value be determined "in light of the purpose of the valuation and of the proposed disposition or use of such property ...." There is no evidence that the debtors are contemplating a sale of the subject property, let alone a forced liquidation sale. To the contrary, if any sale were necessary there are provisions in the Bankruptcy Code that permit an orderly, well-marketed sale for the maximum market value.
This Court presumes that the debtors' appraiser can use the prior investigation of the subject property to arrive at an alleged fair market valuation by the deadline stated at the start of this tentative ruling. If that
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valuation is sufficient to support the motion then this matter will go forward; and otherwise the debtors should file a withdrawal of the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alfredo Medina Represented By Julie J Villalobos
Joint Debtor(s):
Jen G Morales Represented By Julie J Villalobos
Movant(s):
Alfredo Medina Represented By Julie J Villalobos
Jen G Morales Represented By Julie J Villalobos Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 73
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in this court's order setting this matter for hearing (dkt. 76).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Terica Amber Roberts Represented By Dheeraj K Singhal
Trustee(s):
Kathy A Dockery (TR) Pro Se
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COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
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Docket 0
- NONE LISTED -
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fr. 3/3/15, 3/31/15, 4/28/15, 5/26/15, 6/9/15, 7/7/15, 07/28/15, 9/1/15, 9/22/15, 11/17/15, 12/15/15,
1/19/16, 2/23/16, 3/22/16, 5/31/16, 7/19/16, 9/27/16,
11/29/16, 1/10/17, 4/25/17, 6/20/17, 10/17/17, 1/30/18,
4/10/18, 5/8/18
Docket 9
Tentative Ruling for 6/7/18:
Continue to 7/10/18 at 1:00 p.m. Appearances are not required on 6/7/18.
This Court has reviewed the debtor's latest filed documents regarding its cash flow and sale of property (dkt. 316, 317, 319, 320). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Continue to 6/7/18 at 1:00 p.m. Appearances are not required on 5/8/18.
This Court has reviewed the debtor's status report (dkt. 313), notice of pending sale for the Broadway property (dkt. 314), and latest monthly operating report (dkt. 312). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 1:00 p.m. Appearances are not required on 4/10/18.
This court has reviewed the debtor's status report (dkt. 311) and monthly operating reports (dkt. 309, 310), and this court is not aware of other issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's status report (dkt. 304) and the notice (dkt. 307) filed by Bayview Loan Servicing, LLC ("Bayview"). The parties should be prepared to address the issues raised by those papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 10/17/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's post-confirmation status report (dkt. 298) and has no issues to raise sua sponte at this time. The tentative ruling is to continue this status conference to 1/30/18 at 1:00 p.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 10/17/17 at 1:00 p.m. in view of the debtors' status report (dkt. 292). Appearances are not required on 6/20/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/25/17:
Continue to 6/20/17 at 2:00 p.m., to provide the debtors with time to seek entry of a final decree in this case, or such other remedies as may be necessary or appropriate, in view of the confirmed Joint Chapter 11 Plan (dkt. 270) and the unopposed motions to approve the compromise with Butler Capital (dkt. 277-80). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
Tentative Ruling for 1/10/17:
Continue to 4/25/17 at 2:00 p.m. Appearances are not required on 1/10/17.
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Reasons: This court has issued its order confirming the debtors' Joint Chapter 11 Plan (dkt. 270) and this court is not aware of other issues that would warrant a status conference at this time.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
Tentative Ruling for 1/10/17:
Continue to 4/25/17 at 2:00 p.m. Appearances are not required on 1/10/17.
Reasons: This court has issued its order confirming the debtors' Joint Chapter 11 Plan (dkt. 270) and this court is not aware of other issues that would warrant a status conference at this time.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The tentative ruling, subject to any objections at the hearing and further subject to consideration of whether re-balloting is required, is to provide the debtors with one final opportunity to correct the issues set forth below with the disclosure statement (dkt. 250) and the debtors’ proposed plan (dkt. 249). The principal documents reviewed by this Court are the plan, disclosure statement, and supporting documents (dkt. 249-254), Butler Capital’s objection (dkt. 256), and the debtors’ reply (dkt. 257).
Sequence of property sales.
The sequence of property sales in Exhibit H of the Disclosure Statement is not clear. Do the properties have to sell in a particular order?
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Are the debtors obligated to sell whatever they can as soon as they can and/or in whatever sequence and combinations will maximize value and/or speed? The tentative ruling is that the debtors must clarify Exhibit H either to demonstrate the correct order of sale or that the plan does not require sale in a particular order.
Escrow Deadlines.
From this Court’s review of the amended Exhibit H, it appears that the debtors intend to have one year from the projected effective date of December 1, 2016 in which to open escrow, and if any properties that meet that condition later fall out of escrow, the debtors have sixty days to open a new escrow, with an outside period of 18 months from December 1, 2016 (or earlier, if an escrow is opened earlier) in which all escrows must close.
However, the way that this is written in the plan is difficult to understand. Particularly, Exhibit H, pp. 4:25-5:1, is unclear, especially because the projected effective date of the plan is not listed until Exhibit H, Page 10. The tentative ruling is that the debtors must revise the language in the plan to clarify these provisions.
Provisions for relief from default.
The sentence on p.5:14-19 regarding relief from default remains confusing. Is default exclusively tied to proceeds given to Bayview? Can other parties declare default? The tentative ruling is that these provisions must be revised to be written in "plain" english to better reflect the debtors' intention.
"Good cause" for relief from default.
The sentences on p.6:10-14 regarding the standard for cause for relief from default are confusing. The debtors list as a possible standard the same standard that would apply to a debtor showing adequate protection in defending against a motion for relief from the automatic stay, but then they state that alternative standards may be proposed by the parties or the Court, if the Court deems some other standard more reasonable under the circumstances. How would this court make that determination? The tentative ruling is that the debtors must clarify these provisions so they may be more equitable to creditors.
Feasibility of interest payments.
In its Tentative Ruling for 9/27/16, this Court addressed the issue of the feasibility of the debtors’ proposed interest payments to Bayview (Exhibit H, p.7:14-16) without some sort of cash infusion at the beginning of the plan.
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Exhibit H does not appear to have been explicitly amended to address the Court’s concerns. The tentative ruling is that the plan must be amended to provide for a cash infusion, and to make the failure to provide such infusion, or failure of the debtors immediately to provide evidence of that infusion, an event of default. In addition, the parties should be prepared to address whether Exhibit H should include an explanation of Butler Capital’s treatment under the plan, in light of Butler Capital’s objection to confirmation (dkt. 256), and the debtors’ reply (dkt. 257).
In addition, the debtors should be prepared to address the status of the proposed sale of the Foasberg Dry Cleaning business and whether, after payment of creditors to that business have been paid, the proceeds will constitute an adequate cash infusion to support the proposed interest payments.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan: The tentative ruling is to set a deadline of 12/13/16 for the debtor to lodge proposed orders approving the disclosure statement and confirming the plan and to file and serve on Bayview, the Receiver (for Hilma Foasberg), and the debtors' equity holders (i) notices of lodgment, (ii) an amended plan as set forth above (with any additional changes ordered at the hearing) and (iii) a redline showing the changes. If those documents appear accurately to reflect this court's rulings and otherwise to be acceptable, and if there are no objections to those changes by 12/20/16, then this court intends to issue orders approving the disclosure statement and confirming the plan. Otherwise, this court intends to hold a telephonic hearing.
Continued status conference: 1/10/16 at 2:00 p.m. No written status report is required. (This likely will be continued for 60 days or so if the plan is confirmed.)
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Revised Tentative Ruling for 9/27/16
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The tentative ruling is to approve the disclosure statement (dkt. 228) and confirm the debtors' proposed plan (dkt. 227) if and only if the debtors make the following modifications/interlineations and can provide a cash infusion or other sufficient evidence of feasibility as set forth below. The principal documents reviewed by this court are the plan, disclosure statement, supporting documents (dkt. 229-231), Bayview's objections (dkt. 240), the ballot summary (dkt. 242), the debtors' reply (dkt. 243), and Mr. Foasberg's supplemental declaration (dkt. 244).
Explicit incorporation of Exhibit H into the plan
The tentative ruling is that either Exhibit H itself, or the plan, or the order confirming the plan, or all three, must make it explicit that Exhibit H is incorported into the plan (although it is only attached to the disclosure statement). That appears to be the intent of the plan, if not its actual terms, because it references Ex.H and vice versa, but this should be more explicit.
"Hard" dates for the close of escrow
The debtors' current proposed plan adopts the previously ordered deadlines that for each property the debtors must be in escrow one year after confirmation (dkt. 228, Ex.H, p.4:24-25), and close escrow 18 months after escrow is entered (id., p.5:26-28), and also proposes (i) that they have 60 days from the failure of any escrow to re-open an escrow if they find a new buyer (id., p.5:2-4) and, apparently, (ii) that each new escrow opens a new 18 month period (id., p. 5:26-28). The tentative ruling is that the former condition meets the standards for cramdown (fair and equitable etc.) but the latter does not.
The tentative ruling is further that the debtors could cure this problem by expressly providing two things. First, the 18 month period would run from the first date when any escrow is opened as to a given property (or, for any escrow that is pending on the Effective Date, 18 months from the Effective Date). Second, to prevent possible evasion of the deadlines, sales would need to be all cash at closing (no deferred payments; no transfers of equity in
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lieu of cash; etc.).
Confusing additional preconditions to any default
The debtor apparently seeks to impose an additional precondition (dkt.
228, Ex.H, p.5:12-25, the "Additional Precondition") that before a party in interest may send a notice of default it must show that the payment of its claim is actually threatened after taking into account the likely proceeds from whatever properties actually are in escrow. First, as Bayview points out, this appears to place an undue burden on creditors.
Second, the Additional Precondition appears to be unnecessary because the debtors have an alternate remedy. If the debtor is actually able to pay creditors from the pending sales of other properties, and those sales are sufficiently likely to occur quickly, then the debtor can argue as much in its motion for relief from default (dkt. 228, Ex.H, pp. 5:28-6:6, the "Relief From Default Provisions").
Accordingly the tentative ruling is that the Additional Preconditions are not fair and equitable and must be struck from the plan.
Relief from default
The debtor has presented evidence regarding the difficulty of selling the properties, due in large part to environmental issues. Based on that evidence, it is difficult to tell in advance, for example, (i) what defaults could reflect a lack of diligence by the debtor, as opposed to genuine obstacles to closing due to environmental issues, or (ii) whether the debtor is unreasonably seeking to eliminate all possible environmental issues instead of selling at a moderate discount to a buyer who is willing to address some such issues. In other words, there may be good reasons for the debtor to be able to seek relief from default, but it is difficult if not impossible to know in advance, so the debtor appears to have proposed a reasonable mechanism to place this issue before this court, subject to the familiar standards for relief from the automatic stay.
Bayview has not presented contrary evidence or a suitable alternative mechanism for dealing with these issues. Accordingly, the tentative ruling is that the Relief From Default Provisions are fair and equitable and otherwise satisfy the requirements for confirmation under the circumstances.
Reinstatement
The debtors do not disagree with Bayview's proposed language: that "any [currently pending] foreclosure [proceedings with respect to] the subject properties will be rescinded" as opposed to stating that the loans will no
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longer be in default. The tentative ruling is that the plan must be amended to make this change (see dkt. 228, Exhibit H, p. 6, dkt. 240, p.12:5-8, dkt. 243, p. 8:10-12).
Interest payments
The debtors' plan proposes to make monthly interest-only payments of
$5,963.41 and $3,794.45 to Bayview until it is paid in full from the sale of the real properties (dkt. 228, Ex. H, p.7:2-4). This raises two issues: (i) whether the proposed rate of interest is appropriate and (ii) whether the proposed payments are feasible (11 U.S.C. 1129(a)(11)).
Appropriate interest rate
The debtors have proposed interest rates of 7.5% (dkt. 228, Ex.H, p.7:2-4). This is somewhat higher than the rates in the existing promissory notes (dkt. 243, pp.8:28-9:4).
As stated in Judge Bason's posted procedures,
Judge Bason has expressed the view in various cases that when dealing with relatively small dollar amounts (for which the cost of presenting expert testimony as to interest rates would be prohibitive) the analysis in Till v. SCS Credit Corp., 541 U.S. 465 (2004), is appropriate, and conversely when dealing with larger dollar amounts the Till analysis probably is not appropriate, and one acceptable method for experts to opine as to the appropriate interest rate is the method described in In re Boulders on the River, Inc., 164 B.R. 99 (9th Cir. BAP 1994); see In re N. Valley Mall, LLC, 432 B.R. 825 (Bankr. C.D. Cal. 2010) (discussing continued viability of Boulders on the River).
In this case it does not appear to be cost-effective for either party to incur the expense of expert testimony as to interest rates (i.e., the type of expert testimony addressed in Boulders on the River and N. Valley Mall). In any event neither party has chosen to do so. So the tentative ruling is to apply the Till analysis or something comparable.
Under that analysis, courts typically apply an interest rate of 1% to 3% over prime, although the starting point might be different (higher) in situations such as this when the properties have environmental issues, so this court also looks to the contract rate used by the parties. This court also takes into consideration that payment to Bayview has been much delayed, and the debtors are proposing interest-only payments (as opposed to amortizing
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payments), but on the other hand Bayview's claims are protected by a large equity cushion, and national interest rates are near historic lows.
Under the foregoing analysis the debtors have made a sufficient prima facie showing that their proposed interest rates are within the range of what is permissible. Bayview has not rebutted that showing. Therefore the tentative ruling is to approve the proposed interest rates.
Feasibility
The supplemental declaration of Mr. Foasberg indicates that he intends to sell the dry cleaning businesses that have been failing to pay rent to the debtors for several months (dkt. 244, p. 2). The problem is that it is not at all clear how the debtors intend to make plan payments prior to the sale of the business given their recent performance, i.e., lack of feasibility (11 U.S.C. 1129(a)(11)). Their MOR for August (dkt. 241, p. 21), states that they only hold unrestricted cash of $2,044.28.
It appears that the debtors will need a cash infusion if this court is to make a finding of feasibility. In addition, testimony will be needed (or at least an offer of proof subject to cross-examination) to support the debtors' assertion that any given dollar amount is adequate to show feasibility.
To the extent that this or any other issue requires testimony, this court may accept an offer of proof or brief testimony at today's hearing, or may set a continued hearing for the presentation of evidence and cross-examination. The parties should be prepared to address timing and procedures.
The tentative ruling is that the plan must be amended to provide for such a cash infusion, and to make the failure to provide such infusion, or failure of the debtors immediately to provide evidence of that infusion, an event of default.
Preservation of net revenues/"set aside" for possible environmenal remediation
The plan apparently contemplates that if the debtors have their projected cash flow then most net revenues would be used to fund a "set aside" each month for possible environmental remediation of their properties estimated at $5,000 per month per debtor. The tentative ruling is that for the plan to be fair and equitable (and otherwise meet the standards for confirmation) any such funds must be subject to the following conditions.
First, they must be actually paid: if the debtors make any expenditures out of the ordinary course of business, except to fund such a set aside or pay for environmental remediation, then it seems that must be a default under the
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plan for the plan to be fair and equitable. Second, if the debtors fail to provide monthly accounting of such funds, including a bank account statement, then that would have to be a default under the plan for it to be fair and equitable.
Form of confirmation order
The tentative ruling is that, pursuant to LBR 3020-1(b) the confirmation order shall include the following:
Within 120 days of the entry of this order, the debtors shall file a status report explaining what progress has been made toward consummation of the confirmed plan of reorganization. The initial report shall be served on the United States trustee, the 20 largest unsecured creditors, and those parties who have requested special notice. Further reports shall be filed every 120 days thereafter and served on the same entities, unless otherwise ordered by the court. A postconfirmation status conference will be held on January 17, 2017 at 2:00 p.m.
If this case is converted to one under chapter 7, the property of the reorganized debtor shall be revested in the chapter 7 estate.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan: The tentative ruling is to set a deadline of 10/4/16 for the debtor to lodge proposed orders approving the disclosure statement and confirming the plan and to file and serve on Bayview, the Receiver (for Hilma Foasberg), and the debtors' equity holders (i) notices of lodgment, (ii) an amended plan as set forth above (with any additional changes ordered at the hearing) and (iii) a redline showing the changes. If those documents appear accurately to reflect this court's rulings and otherwise to be acceptable, and if there are no objections to those changes by 10/11/16, then this court intends to issue orders approving the disclosure statement and confirming the plan. Otherwise, this court intends to hold a telephonic hearing.
Continued status conference: 10/18/16 at 2:00 p.m. No written status report is required. (This likely will be continued for 60 days or so if the plan is confirmed.)
*Warning: special procedures apply (see order setting initial status conference).
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/27/16
This court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 7/19/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Background
These cases were filed in January of 2015. The debtors have filed several proposed plans and disclosure statements, the latest of which are dated 6/21/16 (dkt. 217, 218).
They blame the lack of a confirmed plan of reorganization on the fact that they own several parcels of real estate that may require extensive environmental remediation, and therefore are difficult to sell. The primary outstanding issue in this case is whether their proposed joint plan must provide for a more expedited sales process than the one they have proposed.
That is primarily a confirmation issue (under, e.g., 11 U.S.C. 1129(a)(3) (good faith), (a)(11) (feasibility), and, to the extent "cramdown" is required, (b)
(no unfair discrimination, and being fair and equitable, with respect to each impaired, non-consenting class)). Typically, however, the bankruptcy courts consider prior to any confirmation hearing whether a plan is so deficient on its face that sending it out for voting is not worth the resulting expense, delay, and potential confusion.
In addition, the disclosure statement must contain "adequate information" under 11 U.S.C. 1125(a). Again, that is generally an issue for a later stage - the disclosure statement hearing - but bankruptcy courts often address as a preliminary matter whether the disclosure statement is so deficient that no such hearing should be set. That is particularly important given Judge Bason's practice of setting combined hearings on the disclosure statement and plan confirmation. Therefore it is appropriate to address at this
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stage, initially, whether the debtor has adequately disclosed the potential environmental issues and analyzed the nature of possible remediation, possible approaches that could maximize the sale proceeds balanced against expediting the time for sale, etc.
At the status conference on 5/31/16 this Bankruptcy Court established procedures for the parties to address these issues on a preliminary basis - to determine whether to authorize the debtor to mail a voting package to creditors. The debtors have filed the declaration of their real estate broker Mr. O'Healy (dkt. 220). No other parties in interest have filed any contrary evidence, although creditor Bayview Loan Servicing, LLC ("Bayview") has filed an "opposition" to the proposed joint plan (dkt. 222), which includes an objection to Mr. O'Healy's declaration. The debtors have filed a reply (dkt.
223).
Tentative Rulings
The tentative rulings are as follows, taking into account the amendments that the debtors propose in their reply (dkt. 223) (and solely for the limited purpose described above - i.e., for authorizing the debtor to mail its voting package - and without prejudice to objections at the combinded hearing on adequacy of the disclosure statement and whether to confirm the proposed joint plan):
Evidence: Overrule the objections to Mr. O'Healy's
declaration.
Timing: Overrule Bayview's objection as to the timing of the
sales, except that the timing must be clarified regarding how long escrow can be open before it can be said to have "fail[ed] to close" (dkt. 218-7, Disclosure Statement p.39:3, which is Ex.H at 5:3); and how long the debtors would after any new escrow were to open before it too would have failed to close. On the present record, this Bankruptcy Court is not persuaded that the "drop dead" dates proposed by Bayview are essential, and that the voting package should not be sent. The debtors argue, with supporting evidence, that "[i]f Bayview were to foreclose, it would face the same problems facing Debtors because the hurdles to selling these properties would not be eliminated if someone else were to sell them." (Dkt. 223, p.6:10-12.)
The foregoing should not be interpreted as a ruling for confirmation purposes. It may be necessary or appropriate, in order to confirm any plan, to establish either "drop dead" dates or some mechanism to assess whether the
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debtors have been dragging their feet and whether it is fair and equitable to grant additional time to engage in the sale process.
Default terms: Sustain Bayview's objections regarding the proposed default terms, because of the difficulty (if not impossibility) that Bayview would have in filing a declaration under penalty of perjury as to the debtors' funds and the status of the debtors' sales. The parties should be prepared to address alternative default terms.
Reinstatement of loans: Overrule Bayview's objections regarding the reinstatement of its loans.
Other issues: The debtors' Exhibit H is needlessly repetitive (this Court will review the details orally at the hearing). In addition, the parties appear to assume that the automatic stay will continue to apply (see, e.g., dkt. 218-7, Disclosure Statement p.89:9, which is Ex.H at 5:9) but the "boilerplate" language in the plan provides for property to revest in the reorganized debtors on the Effective Date (dkt. 217, p.5, part IV.B.) which generally terminates the automatic stay (11 U.S.C. 362(c)(1)). If the debtors intend to provide for the automatic stay to continue (either by eliminating revesting, or by some other means) then they must disclose that clearly, and establish that they legally can do so.
Deadlines/dates. These jointly administered cases were filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan (dkt.217)/Disclosure Statement (dkt. 218): This court anticipates setting the following deadlines: 7/26/16 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference; 7/29/16 for the plan proponent to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; 9/27/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 9/27/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent,
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then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/19/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/31/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
These cases have been pending since 1/23/15 - a very long time. This Court has reviewed the debtor's (belated) status report (dkt. 213). The parties should be prepared to address the outline of a plan proposed by the debtor and any associated deadlines.
Deadlines/dates. This case was filed on 1/23/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: See above
Continued status conference: 9/6/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/22/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. On 3/22/16, this court continued this matter to allow the debtors and Bayview (the primary secured creditor) to negotiate agreeable terms. The parties should be prepared to address whether they have
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resolved their dispute or, if not, how they intend to proceed.
Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: Subject to the foregoing issues: 4/6/16 deadline for the plan proponent to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; and 5/31/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 5/31/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/23/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 193) and disclosure statement (dkt. 194) (and redline, dkt. 195). The debtors now propose a one year deadline after the effective date to have the subject properties "under contract and in escrow" (see, e.g., dkt. 194-7, p. 6:1-6). Is this agreeable to Bayview Loan Servicing, LLC? Are all major constituencies in agreement regarding the amended plan? Are there any other issues that need to be resolved prior to setting a date for a hearing on approval of the disclosure statement and confirmation of the plan?
Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement: Subject to the foregoing issues: 3/2/16 deadline for the plan proponent to lodge Judge Bason's form of
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order authorizing service of the relevant documents and setting deadlines; and 4/26/16 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Continued status conference: 4/26/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 1/19/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Progress toward confirmation. At the 11/17/15 status conference, the debtors stated that they would file an amended, red-lined version of their plan and disclosure statement correcting certain issues. When do the debtors anticipate filing these?
Deadlines/dates. This case was filed on 1/13/15.
Bar date: 4/20/15 (timely served per dkt. 40)
Plan/Disclosure Statement (dkt. 174, 175): The parties should be prepared to discuss the debtors' exit strategy and deadlines for any further sale motions and/or an amended plan and amended disclosure statement.
Continued status conference: 2/23/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 1/19/16:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 56
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Angela N Kimble Represented By Bradley J Yourist
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON TRUST CO
vs DEBTOR
Docket 97
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Robert Ulrich Stansbury Represented By
Michelle A Marchisotto Michael Smith
Craig K Streed
Joint Debtor(s):
Cecelia Theresa Stansbury Represented By
Michelle A Marchisotto Michael Smith
Craig K Streed
Movant(s):
The Bank of New York Mellon Represented By Tyneia Merritt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 55
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Leticia Garcia Represented By Leonard Pena
Joint Debtor(s):
Antonio Garcia Represented By Leonard Pena
Movant(s):
Nationstar Mortgage, LLC. Represented By Michael Daniels Angie M Marth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 95
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Brian E Blackburn Represented By Kelly F Ryan
Joint Debtor(s):
Rossana C Blackburn Represented By Kelly F Ryan
Movant(s):
Wells Fargo Bank, N.A. Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 33
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Don G Dickson Represented By William Radcliffe
Joint Debtor(s):
Barbara D Dickson Represented By William Radcliffe
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 102
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Oswaldo Barba Represented By
James D. Hornbuckle
Joint Debtor(s):
Jeanne Teran Represented By
James D. Hornbuckle
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss Jenelle C Arnold
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FAARGO BANK, NA
vs DEBTOR
Docket 66
Debtor(s):
Salvador Flores Represented By Stephen R Wade
W. Derek May
Joint Debtor(s):
Maria D Flores Represented By Stephen R Wade
W. Derek May
Movant(s):
Wells Fargo Bank, N.A., as Trustee, Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 88
Debtor(s):
Carmen Z Montalvan Represented By Alisa Admiral Steven B Lever
Movant(s):
The Bank of New York Mellon FKA Represented By
Tyneia Merritt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 45
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Frederick C. Capitulo Represented By Stephen S Smyth William J Smyth
Joint Debtor(s):
Ma Theresa D. Capitulo Represented By Stephen S Smyth William J Smyth
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 32
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's Non- Opposition (dkt. 34)
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Michael Daniel Ramirez Jr. Represented By Sundee M Teeple Craig K Streed
Joint Debtor(s):
Noelia Ramirez Represented By Sundee M Teeple Craig K Streed
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF AMERICA, NA
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ricardo Ponce Represented By Stephen S Smyth William J Smyth
Movant(s):
Bank of America, N.A. Represented By Jenelle C Arnold Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, NATIONAL ASSOC vs
DEBTOR
Docket 36
- NONE LISTED -
Debtor(s):
Maria Monina Suarez Represented By Joshua L Sternberg
Movant(s):
U.S. Bank, National Association, as Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 40
- NONE LISTED -
Debtor(s):
Sergio Salas Salinas Represented By Luis G Torres
Joint Debtor(s):
Noris Iveth Ramos Represented By Luis G Torres
Movant(s):
U.S. Bank National Association, as Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 53
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Sunny H Luong Represented By Michael Y Lo
Joint Debtor(s):
Tiffany Ly Represented By
Michael Y Lo
Movant(s):
Bayview Loan Servicing, LLC Represented By Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON TRUST, NA
vs DEBTOR
Docket 49
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Background. On 1/16/18 the debtor filed his chapter 13 petition commencing this case. The bankruptcy schedules filed with the petition (dkt. 1, at PDF pp.13, 20, 22) value the subject property at $1.2 million and assert a homestead exemption of approximately $150,000. Creditor Wilmington has filed a proof of claim (POC 6) asserting a claim of $1,252,632.10 as of the petition date, secured by the property.
This case was voluntarily converted to chapter 7 by the debtor (dkt. 33, 35) after creditor John R. Lobherr, Inc. ("Lobherr") obtained relief from the automatic stay to complete litigation in State Court, and then obtained a judgment of over $250,000 against the debtor. See dkt. 20, 31, 35.
Creditor Wilmington Trust, N.A. as trustee for the holders of the beneficial interest under the deed of trust on the subject property ("Wilmington") has now filed its motion for relief from the automatic stay (dkt. 49, the "R/S Motion"). According to Wilmington (dkt. 49, pp.10-17) there have been (a) transfers of fractional interests in the subject property, (b) at least seven bankruptcy cases filed by the debtor and the non-debtor spouse, and
(c) numerous other bankruptcy cases affecting this property - for a total of approximately 30 bankruptcies that have hindered and delayed its efforts to collect its claim.
A response to the R/S Motion has been filed by Mr. Iwuchuku, the
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debtor's counsel of record, on behalf of the debtor and/or the non-debtor spouse (the response is not entirely clear about who is responding). See dkt. 54, p.1 (the "Debtor Response"). At the hearing Mr. Iwuchuku is directed to clarify whether he has filed the Debtor Response on behalf of both the debtor and the non-debtor spouse.
The Debtor Response claims that the purported transfers to other debtors in bankruptcy "were done by forgery and NOT with debtor's consent." Dkt.54, p.2, para. 3.c.(2) (emphasis added). Presumably, the allegation is that the transfers were done without the knowledge or consent of either the debtor or the non-debtor spouse; but again Mr. Iwuchuku is directed to clarify if that is the representation being made to this Court.
In any event, the Debtor Response asserts that Wilmington's interest in the property is adequately protected because the property allegedly is worth
$1,400,000 as of 3/30/18. The Debtor Response relies on an appraisal by Mr. James Frost. Dkt. 54.
Meanwhile, the Chapter 7 Trustee has filed a notice of intent to abandon the property (dkt. 48, the "Abandonment Notice"). The Trustee asserts that the property is burdensome or of inconsequential value to the estate. See 11 U.S.C. 554(a).
Creditor Lobherr filed responses to both the Abandonment Notice and the R/S Motion (dkt. 51, 52, 53) arguing that the property is worth approximately $1.8 million and therefore has non-exempt equity that should be used to pay creditors. Loherr relies on a declaration of a real estate broker, Brian T. Thompson. Dkt. 51, p.3, dkt. 52, p.5. The Trustee's reply in support of abandonment (dkt. 57) asserts that the value of the property is
$1.4 to $1.45 million, and in the alternative calculates that under any of the proposed valuations there would be no net equity for the bankruptcy estate after paying the deed of trust, capital gains taxes, costs of sale, and the debtor's homestead exemption.
The Trustee filed a notice setting the Abandonment Notice for hearing concurrent with this hearing on the R/S Motion (presumably subject to authorization from this Court for shortened time for such notice). See LBR 6007-1(e). Meanwhile Lobherr also filed a motion objecting to the debtor's asserted homestead exemption (dkt. 55, the "Homestead Objection"), which had been self-calendared for hearing on 6/26/18 at 11:00 a.m.
More recently, however, Lobherr has withdrawn its oppositions to the Abandonment Notice, the R/S Motion, and the debtor's asserted homestead
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exemption. Dkt. 59-61. The Trustee has filed a notice of lodgment of an order abandoning the property (dkt. 62), although as of the preparation of this tentative ruling this Court's records do not show that any such order actually has been lodged.
Clarification by Mr. Iwuchuku and his apparent clients. As stated above, Mr. Iwuchuku is directed to clarify (a) whether the Debtor Response is filed by both the debtor and the non-debtor spouse, and (b) whether they are asserting that neither one of them had any knowledge of, or participation in, the transfers of fractional interests in the property to other persons. The debtor and the non-debtor spouse should be prepared to testify on those issues.
Abandonment terminates the automatic stay. The automatic stay only protects property as long as the property remains within the bankruptcy estate. See 11 U.S.C. 362(c)(1). When property is abandoned it is no longer part of the estate (11 U.S.C. 554), and the Trustee's Abandonment Notice is now unopposed. Therefore, the stay will be terminated and the only issue is whether to grant relief from the automatic stay that will be applicable in other bankruptcy cases - (a) future bankruptcy cases (sometimes referred to as "in rem" or "ex parte" relief), or (b) past or present bankruptcy cases.
In addition and in the alternative, the tentative ruling is that Wilmington has established sufficient "cause" to terminate the automatic stay in this case under 11 U.S.C. 362(d)(1). Such cause is shown by the "scheme" described below.
Relief from the automatic stay in other bankruptcy cases.
Relief as to future bankruptcy cases. Section 362(d)(4) provides for relief that will be effective with respect to real property notwithstanding any future bankruptcy cases purporting to involve that property. The statute directs that this Court "shall" grant relief "with respect to a stay of an act against real property" by a creditor whose claim is secured by an interest in such property, "if the court finds that the filing of the petition was part of a scheme to delay, hinder, or defraud creditors that involved either - (A) transfer of all or part ownership of, or other interest in, such real property without the consent of the secured creditor or court approval; or (B) multiple bankruptcy filings affecting such real property." (Emphasis added.)
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The debtor and non-debtor spouse assert that they were not part of the scheme, but they do not dispute that such a scheme exists.
Debtors/borrowers need not be part of any such scheme for this Court to be able to grant in rem/ex parte relief. See In re Vazquez (case no. 2:16-bk- 10699-NB, dkt. 75). Under the facts and circumstances presented, the tentative ruling is to grant such relief because Wilmington has met its burden to show prima facie cause for such relief from the automatic stay under 11
U.S.C. 362(d)(4) and/or Vazquez and the debtor and the non-debtor spouse have not rebutted that showing.
First, their allegations about someone having forged their signatures are not supported by their declarations. See dkt. 54. Second, they offer no explanation why some as-yet unidentified person would have any incentive to forge their signatures and create sham documents that purported to show transfers that never actually happened.
This Court is well aware that sometimes debtors will pay a purported "foreclosure prevention expert" (the "Agent") to stop a foreclosure, and that Agent then "hijacks" bankruptcy cases, either in collusion with the debtors or, sometimes, without such collusion. But when debtors truly are innocent they offer credible explanations, supported by evidence.
For example, the debtor and non-debtor spouse have not offered any declarations explaining how they were introduced to the Agent, what payments they made to the Agent (with copies of canceled checks), how the Agent somehow kept them from having knowledge or notice of the fraud despite the sudden and unexplained cessation of collection or foreclosure activities and despite any notices from the bankruptcy courts or the creditor, what they did as soon as they found out about the fraud to report the Agent to police and regulatory authorities, how they have worked with the creditor to pursue recoveries from the Agent, etc. In this case the debtor and non-debtor spouse offer none of these things. Their asserted innocence does not rise to the level of a colorable assertion, let alone rebut Wilmington's evidence.
For all of the foregoing reasons, the tentative ruling is to grant the following relief as to any future bankruptcy cases:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise
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ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Relief as to past and pending bankruptcy cases. Based on the assertions by the debtor and the non-debtor spouse themselves, all of the purported transfers of interests in their property are shams. Therefore the tentative ruling is that Wilmington has grounds to file an adversary proceeding seeking a declaratory judgment that all transfers are shams, and therefore the automatic stay has never actually arisen in any past or pending bankruptcy case with respect to the property (except for any bankruptcy cases filed by the debtor or the non-debtor spouse themselves). Any such relief presumably would have to be upon sufficient notice to any known persons who might assert an interest in the property. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
To date, however, no such adversary proceeding has been filed.
Therefore, to the extent that Wilmington's R/S Motion seeks any such relief, it is denied on the present record.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sang Chyun Represented By
Donald E Iwuchuku
10:00 AM
Movant(s):
Wilmington Trust, NA, successor Represented By
Merdaud Jafarnia
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 16
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no
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automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Veronica Herrera Pro Se
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 20
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws
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governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Basil Ohakosin Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
IRA SERVICES TRUST CO
vs DEBTOR
Docket 24
Grant in part and continue in part to 6/26/18 at 10:00 a.m. as set forth below. Appearances are not required on 6/12/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the
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documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower"). Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: (a) USA LA CASA S Investment, LLC, a California Limited Liability Company, and (b) Jaime Casas.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date in accordance with Rule 7004(b)(1) and (3) (FRBP).
Alternatively, the movant may self-calendar a continued hearing on regular
notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Basil Ohakosin Pro Se
10:00 AM
Movant(s):
IRA Services Trust Co. CDN FBO Represented By
Edward T Weber
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 27
Grant in part, deny in part, as set forth below. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): debtor's response (dkt. 32) and first amended plan (dkt. 35).
APO. The tentative ruling is to require the debtor to make payments under an adequate protection order ("APO") but include within that order that the automatic stay will not be effective in any future bankruptcy case except as provided in 11 U.S.C. 362(d)(4). The reasons are as follows.
On the one hand, the debtor has presented some evidence of adequate protection in the form of a large equity in the property. The debtor has also provided some justifications for the unauthorized grant deed from the borrower (the debtor's mother) to the debtor: namely, the mother's immigration issues, and the family's desire to protect the equity in the family home.
On the other hand, the mother's three successive bankruptcy cases have not been adequately explained: the only explanation is that, with respect to a single one of those three cases, she had immigration issues that prevented her from attending the meeting of creditors (11 U.S.C. 341(a)).
The mother's failure to adequately prosecute all three of her bankruptcy cases is prima facie evidence of "a scheme to hinder, delay or defraud creditors." 11 U.S.C. 362(d)(4) (emphasis added). (This Court rejects the
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debtor's odd argument that when the statute says "or" it means "and." Dkt. 32 at PDF p.7:7-9.)
These circumstances, combined with the unauthorized grant deed to the debtor, are prima facie evidence that the debtor's bankruptcy petition is part of that scheme. The statute directs that this Court "shall" grant relief when such a scheme has been shown, but it is within this Court's discretion whether such relief should take the form of terminating the automatic stay or some other form, such as modifying or conditioning the stay. See 11 U.S.C. 362(d).
An APO is one form of modifying and conditioning the automatic stay.
The tentative ruling is to issue a standard APO (e.g., three opportunities to cure any future defaults). As usual, the same relief would apply with respect to any co-debtor stay that might exist (11 U.S.C. 1301(c)).
As part of adequate protection, the debtor immediately will have to provide better evidence that the property is adequately insured. The debtor has only provided evidence of some sort of correspondence from an insurer to her mother (dkt. 32, Ex.C), which is not the equivalent of an insurance declarations page, showing the dollar amount of insurance, the expiration date, etc.
As to relief notwithstanding any future bankruptcy cases, the tentative ruling is as follows:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carmen S. Ortiz Represented By Bruce V Rorty
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 12
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no
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automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Aguilar Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 10
Appearances required. The response filed by the debtor's attorney (dkt. 16, 17) states that the debtor is deceased and that he and his widow wish for the subject property to be sold by the Chapter 7 Trustee for the benefit of creditors. Neither that response nor the motion papers explain whether there is any net equity in the property, but bankruptcy Schedule D (dkt. 1 at PDF p. 18) asserts that the property is worth $1.6 million as against the movant's lien alleged to be in the approximate amount of $1.1 million.
The parties should be prepared to address whether there is any net equity in the property after deductions for any legitimate liens, any legitimate co-ownership interests, any outstanding taxes, etc. If the Trustee is satisfied that there may be such net equity then the tentative ruling is to modify and condition the automatic stay as follows.
The Trustee would be required to sell the property within a specified time (e.g., several months), failing which the stay would be terminated, and meanwhile protect the movant by granting relief that will prevent any future bankruptcy case from interfering with the movant's rights regarding this property. Such relief would be pursuant to the statutory authorization not just to terminate the stay but also to "modify" or "condition" it, under 11 U.S.C.
362(d)(1)&(4).
The relief as to any future bankruptcy cases is as follows:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
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For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Daniel A Weston Represented By Stella A Havkin
Movant(s):
JPMorgan Chase Bank, National Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST, NA vs
DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws
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governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Chan Ho Kim Pro Se
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HONDA LEASE TRUST
vs DEBTOR
Docket 21
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Hyeong Joo Ham Represented By Young K Chang
Joint Debtor(s):
Chang Lim Lee Represented By Young K Chang
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
ACAR LEASING LTD
vs DEBTOR
Docket 44
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Yoram Levi Represented By
Matthew D Resnik
Joint Debtor(s):
Sigal Lefkowitz Levi Represented By Matthew D Resnik
Movant(s):
ACAR Leasing LTD dba GM Represented By Jennifer H Wang
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [UD]
CITYWIDE PROPERTY MANAGEMENT & CONSULTING INC
vs DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to the legal analysis in In re Vazquez
(case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-
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28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Young Hwang Pro Se
Movant(s):
Citywide Property Management & Represented By
Joseph Cruz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
OLIVIA DURAN
vs DEBTOR
Docket 33
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling is to terminate the automatic stay in this case, but deny relief as to any future bankruptcy case, subject to the conditions described below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Conditions for terminating the automatic stay
Verify lack of prejudice to creditors, and address other Curtis factors. The movant is directed to address the Curtis factors, set forth in part "(3)" of this tentative ruling, and in particular verify whether there is any anticipated or potential prejudice to the debtor's creditors. A lack of prejudice is not entirely clear from the movant's papers (dkt. 33, 34) or from the papers filed by the debtor.
The debtor's confirmed plan (dkt. 15) omits the creditors that apparently hold deeds of trust against two parcels of real property, both of which are listed on the debtor's bankruptcy schedule D as her sole property (dkt. 1, at PDF p.19, listing properties in Whittier and Calexico, CA, neither with any substantial non-exempt equity). See also Trustee's Notice Of Intent To Pay Claims (dkt. 32) (noting two "omitted" secured creditors).
On the other hand, the debtor's amended bankruptcy schedules I & J
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(dkt. 14) show both income and expenses apparently associated with these properties. Is the movant paying the mortgages on these properties? Will any award of these properties to him in the divorce case result in a decrease (or increase) in the debtor's disposable income?
Provide reports. The tentative ruling is to include within any order granting relief from the automatic stay a direction to the movant to file a declaration every six months through the end of this case (or as later ordered by this Court) with a status report as to any property division or allocation of mortgage payments and receipt of rental income. The purpose is so that appropriate adjustments can be made, if the Chapter 13 Trustee or a creditor so requests, to the debtor's confirmed chapter 13 plan (dkt. 15), any statement of postpetition income and expenses, or other appropriate documents.
The Curtis factors. The Bankruptcy Court "shall grant relief from the stay," such as by terminating, modifying, or conditioning the stay, upon a showing of "cause." 11 U.S.C. 362(d)(1). "'Cause' is determined on a case-by-case basis." In re Tucson, 912 F.2d 1162, 1166 (9th Cir.1990).
In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr. D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9)
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Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W] hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Olivia Duran Represented By
Daniel King
Movant(s):
Olivia Duran Represented By
Daniel King
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CONSTRUCTION LABORERS TRUST FUNDS FOR SOUTHERN CALIFORNIA ADMIN CO
vs DEBTOR
Docket 117
Grant as provided below, based on the motion (dkt. 117), the Chapter 7 Trustee's non-opposition (dkt. 120), and the fact that, as noted by the movant (dkt. 121), no opposition has been filed by the debtor . Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Limited relief. Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate. The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
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Claim allowance, priority, and discharge issues. Any claims arising
from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Additional analysis:
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson, 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr. D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary;
Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for
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the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W] hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that these factors weigh in favor of granting relief as set forth above. Most significantly:
the district court action involves the debtor as a fiduciary (factor 3);
the nonbankruptcy action complaint involves nonbankruptcy issues which would be more appropriately resolved by the district court (factor 4);
the district court is better situated to conduct a jury trial and it is more economical for the parties to only have to litigate their dispute before a single tribunal (factor 10); and
as of the preparation of this tentative ruling, the debtor has not opposed this court granting relief for the district court action to proceed, so the balance of hurt weighs in movant's favor (factor 12).
The parties are cautioned that the standards for nondischargeability may be different from the standards applicable to the underlying litigation. To avoid needless duplication of judicial resources, the parties are encouraged to frame the issues before the district court in a way that will have preclusive effect on any nondischargeability issues.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
10:00 AM
Movant(s):
Construction Laborers Trust Funds Represented By
Marsha M Hamasaki Jeffry D Sackman
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 68
Tentative Ruling for 6/12/18 (same as for 5/8/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the last hearing, this court continued the matter at the parties' request to allow time to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dominick Rolland Atkins Represented By Matthew D Resnik
S Renee Sawyer Blume
Movant(s):
Ditech Financial LLC Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
5/1/18
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 105
Tentative Ruling for 6/12/18 (same as for 5/1/18 4/10/18, 2/27/18, 1/9/18): Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling. This matter has been continued a number of times to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required. There is no tentative ruling. At the hearing on 10/3/17, this court continued the matter to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
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Tentative Ruling for 10/3/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 107).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Partrick I. Ikhifa Represented By
Anthony Obehi Egbase Onyinye N Anyama Edith Walters
W. Sloan Youkstetter
Movant(s):
Wilmington Savings Fund Society, Represented By
Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PARAMOUNT RESIDENTIAL MORTGAGE GROUP
vs DEBTOR
Docket 57
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 5/8/18 hearing, this court continued the matter at the parties' request for more time to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
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Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it
has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Viridiana Gutierrez Represented By William G Cort
Movant(s):
Paramount Residential Mortgage Represented By
Jason A Savlov Jason C Kolbe Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CITIMORTGAGE, INC.
vs DEBTOR
Docket 274
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court has reviewed the debtor's status report (dkt. 289) and the movant's supplemental proof of service (dkt. 288). There is no tentative ruling, but the parties should be prepared to inform this Court about any other updates regarding the Tchoupitoulas Property, the Santa Ynez Property and the debtor's payments to the movant.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the effect of the debtor's failure to perform the terms of the confirmed plan; the debtor's response (dkt. 276); the movant's reply papers (dkt. 277-79); and the debtor's further papers including his request for a continuance (dkt. 280-84).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
Movant(s):
CitiMortgage, Inc. Represented By Todd S Garan
10:00 AM
WELLS FARGO BANK, NA.
vs DEBTOR
Docket 37
Debtor(s):
Cathy Renae Johnson Represented By
Rabin J Pournazarian
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Cont'd hrg re: Motion for relief from stay [UD] fr. 5/8/18, 5/22/18
DYLAN COOPER PAUTSCH MYERS, LLC
vs DEBTOR
Docket 35
Tentative Ruling for 6/12/18:
Continue to 6/26/18 at 10:00 a.m. as set forth below as a final continuance. Appearances are not required on 6/12/18.
Analysis:
(1) Background. On 5/9/18, Movant filed an amended motion (dkt. 50). The amended motion was not properly served, so this Court's tentative ruling for 5/22/18 (reproduced below) set a continued hearing date of 5/29/18 with directions for Movant to properly serve necessary parties with the motion and notice of the continued hearing date. At the hearing on 5/22/18, counsel for Movant appeared and requested this Court continue the hearing to 6/12/18 (instead of 5/29/18), which was granted. Accordingly, this matter was not listed on this Court's calendar for 5/29/18.
Nevertheless, on 5/23/18, Movant served notice of the continued hearing with a 5/29/18 hearing date (dkt. 53). This Court issued a Notice to Filer of Error and/or Deficient Document and directed Movant to refile the notice of continued hearing (see dkt. 54), but as of the preparation of this tentative ruling Movant has not done so.
Therefore, the tentative ruling is to continue the hearing to the date and time stated at the start of this tentative ruling to afford Movant a final opportunity to properly serve necessary parties with the motion and notice of the continued hearing date.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Continue to 5/29/18 at 10:00 a.m. as set forth below. Appearances are not required on 5/22/18.
Analysis:
Background. At the hearing on 5/8/18 counsel for the movant engaged in a coluquy with this Court regarding possible relief from the automatic stay that would be effective notwithstanding this or other bankruptcy cases. This matter was continued from 5/8/18 on shortened notice to allow Movant to file and serve appropriate papers requesting such relief. On 5/9/18, Movant filed an amended motion (dkt. 50).
Request for relief in other bankruptcy cases filed in future bankruptcy cases, but not currently pending or past bankruptcy cases
The motion requests relief in future bankruptcy cases (aka "in rem" relief). Implicitly the motion might be seeking relief notwithstanding currently pending or past bankruptcy cases, but it does not actually request such relief.
The motion notes that a large number of persons appear to have alleged that they have an interest in the property, notwithstanding the foreclosure sale that resulted in the movant's interest in the property. The motion implies that the alleged interests might be a complete sham.
This Court recognizes that this might be so. This Court notes (a) the large number of alleged interests; (b) the multiple bankruptcy cases that appear to be involved, (c) this Court's order dismissing this case with a two year bar (dkt. 42); and (d) this Court's orders that certain persons connected to this case appear and show cause why they should not be sanctioned (dkt. 48, 49). Based on similar facts and circumstances, this Court has been persuaded in the past to grant relief applicable to past or pending bankruptcy
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cases (not just future bankruptcy cases), but only when expressly requested (and supported with adequate evidence), and only when requested via an adversary proceeding. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311). The movant has not followed such procedures, nor has the movant made any request for relief expressly applicable to any currently pending or past bankruptcy cases, so this Court construes the motion as requesting relief that is only applicable to future bankruptcy cases.
The motion was not served on most of the persons who apparently assert an interest in the property
The tentative ruling is to continue the motion to the date and time set forth at the start of this tentative ruling for service on the persons described below. According to the motion, various persons "claim to have a 'right to possession' as alleged tenants of the former owners [or singular owner?]" of the property prior to foreclosure (dkt. 50, p.7, para. 5.(4)). The tentative ruling is that such persons (and perhaps others) require notice of the relief sought in the motion.
This Court recognizes that any foreclosure might have wiped out the interests of any tenants. On the other hand in various situations that is not necessarily so - e.g., if the tenancy pre-dated the deed of trust and there was no agreement for subordination or the like then perhaps foreclosure did not wipe out the tenancies; or perhaps applicable nonbankruptcy law would protect residential tenants in some fashion; or perhaps even a bare possessory interest is entitled to some protection (perhaps that interest would be enough for a tenant to obtain the benefits of the automatic stay in their own future bankruptcy case long enough for an orderly move-out).
The point is not that the alleged tenants necessarily have any actual rights or ability to oppose the motion for "in rem" relief - Judge Bason is not prejudging those things one way or the other. Rather, the point is that Judge Bason has due process concerns about granting relief that would be effective notwithstanding any future bankruptcy filing without any notice to the alleged tenants or any others who may claim an interest in the property. See generally Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally).
The alleged tenants appear to be Catry Cho and Vivian Cho (dkt. 50, Ex.3); Robert Garviria and John Blanco (dkt. 50, Ex.4); Jonathan Marroquin and Zena Hill possibly aka Zena Louise Hill possibly aka Bonita D Hill (see
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cases no. 2:18-bk-14316-ER and 2:17-bk-21208-BR) (dkt. 50, Continuation Page, at PDF pp.12-13); Beanca "Bea" Cho (dkt. 50 at PDF pp.12-13); and Juan Herrera (one of the debtors in this case) (id.). In addition, the owner prior to foreclosure appears to have been Martin W. Gentry (the trustor under the deed of trust prior to foreclosure) (dkt. 50, Ex.1, at PDF p.5 of 21), and given the possibility that the alleged tenants or Mr. Gentry assert that some sort of alleged interest survived the foreclosure it appears appropriate to require service on him as well.
Accordingly, the tentative ruling is to direct the movant to serve (i) its papers and (ii) notice of the continued hearing date substantially as follows:
Martin W. Gentry; Catry Cho; Vivian Cho; Robert Garviria; John Blanco; Jonathan Marroquin; Zena Hill; Zena Louise Hill; Bonita D Hill; Beanca "Bea" Cho; Juan Herrera; Anais Cabrera; and any other residents or persons asserting an interest in the premises 34471 Via Gomez
Dana Point, CA 92624
Option for shortened time: This Court has selected a continued hearing date that contemplates shortened notice (per Rule 9006, Fed. R. Bankr. P.) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Herrera Pro Se
Joint Debtor(s):
Anais Cabrera Pro Se
Movant(s):
Dylan Cooper Pautsch Myers LLC Represented By
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Trustee(s):
Laurie Howell
Elissa Miller (TR) Pro Se
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US BANK N.A.
vs DEBTOR
Docket 41
Tentative Ruling for 6/12/18:
Appearances required.
At the hearing on 5/22/18, this Court was persuaded to continue this hearing to this date at Movant's request to allow time for the parties to negotiate a stay-current adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Deny for the reasons stated in the debtor's response (dkt. 48). At this early stage of the case it is premature to conclude that the debtor cannot propose a plan of reorganization that has a reasonable possibility of being confirmed within a reasonable time. Appearances are not required.
Proposed order: Debtor is directed to lodge a proposed order via LOU within
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7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's response (dkt. 48)
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
Movant(s):
U.S. Bank National Association Represented By Cassandra J Richey
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fr. 5/29/18
Docket 72
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 5/29/18 hearing, this court continued the matter at the debtor's request for clarification from creditor regarding the correct arrearage amount. There is no tentative ruling, but the parties should be prepared to discuss the status of this matter.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Deny for the reasons stated in the opposition papers (dkt. 78). See also OST (dkt. 73, p.3, para.7). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Vera Sylvia Mallet Represented By
Anthony Obehi Egbase Crystle J Lindsey
Movant(s):
Vera Sylvia Mallet Represented By
Anthony Obehi Egbase Crystle J Lindsey
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Real Property of the Estate Located at 1212 S Longwood Avenue, Los Angeles, CA 90019
Docket 48
Grant. See dkt. 60 (withdrawal of opposition). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sang Chyun Represented By
Donald E Iwuchuku
Trustee(s):
Elissa Miller (TR) Pro Se
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Docket 43
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the papers (dkt. 43, 56, 57).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Letitia Louise Wellington Represented By Sanaz S Bereliani
Trustee(s):
Wesley H Avery (TR) Pro Se
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Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
Docket 27
- NONE LISTED -
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Represented By Vatche Chorbajian
George Tyler Fower Represented By Vatche Chorbajian
Siemens Medical Solutions USA Inc Represented By
Marsha A Houston
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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Adv#: 2:16-01008 Forrest Fykes, SR et al v. Armen Janian
11 U.S.C. section 523(a)(6)
fr. 7/19/16, 12/13/16, 05/02/17, 09/12/17, 2/27/18
Docket 1
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This matter has been continued multiple times (see tentative rulings reproduced below, and see Order, adv. dkt. 18). At the 2/27/18 hearing, this court further continued the hearing to today's date and directed plaintiff to give written notice. No such notice appears to have been filed on the docket. Why not?
There is no tentative ruling, but the parties should be prepared to address the issues described in the tentative ruling for 2/27/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Appearances required. At the hearing on 5/2/17 this court was persuaded to continue this matter to 9/12/17. This matter was further continued to today's date (see Order, adv. dkt. 18).
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There is no tentative ruling, but the parties should be prepared to address (1) the results of their mediation, (2) whether to continue this status conference a short time (for finalization of any settlement) or a long time (far enough ahead that the parties can litigate their issues in State Court, which then presumably will have a partially or fully preclusive effect on any nondischargeability issues before this court), and (3) any other matters appropriate to address at this status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/2/17:
Appearances required. At the hearing on 12/13/16 this court was persuaded to continue this matter to today's date, with a deadline of 4/11/17 to complete mediation (see adv. dkt. 13 (mediation order)).
There is no tentative ruling, but the parties should be prepared to address (1) the results of their mediation, (2) whether to continue this status conference a short time (for finalization of any settlement) or a long time (far enough ahead that the parties can litigate their issues in State Court, which then presumably will have a partially or fully preclusive effect on any nondischargeability issues before this court), and (3) any other matters appropriate to address at this status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/13/16:
Continue to 2/7/17 at 11:00 a.m. at which time this court anticipates addressing, in view of the State Court's determinations as to pending matters,
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what trial date and other deadlines to set. Appearances are not required on 12/13/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 7/19/16:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following issues:
Failure to file a status report. Why did the plaintiff not file a status report updating the Court as to the status of the pending state court litigation (adv. dkt. 4)? Should this Court issue an order to show cause based on plaintiff's disregard of this Court's order?
Status of the state court litigation. What is the status of the state court litigation?
Continued status conference. Assuming that the state court litigation is still pending, this Court intends to set a continued status conference for 11/8/16 at 11:00 a.m. The plaintiff must file a brief status report detailing the current status of the state court litigation by 10/25/16.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Armen Janian Represented By Leon Nazaretian
Defendant(s):
Armen Janian Represented By
Leon Nazaretian
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Plaintiff(s):
Forrest Fykes, SR Represented By Michael D Anderson Leon Nazaretian
Valerie Fykes Represented By
Michael D Anderson
Forrest Fykes JR Represented By Michael D Anderson
Melissa Fykes Represented By Michael D Anderson
Trustee(s):
David M Goodrich (TR) Pro Se
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Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18
Docket 1
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing, this Court continued the matter to allow the parties time to meet and confer about the various deadlines that this court should set in this adversary proceeding and/or court-ordered mediation. This matter was further continued to today's date for the parties to participate in mediation on or about 5/21/18 (see Order, adv. dkt. 21). This Court also directed the parties to file a status report by 5/29/18, but the parties have not done so--for a second time.
There is no tentative ruling, but the parties are directed to address why they have not filed a status report, and to provide an oral status report, and are cautioned that continued failure to adhere to the applicable rules and orders of this Court may result in sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if
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advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing, this Court continued the matter to allow the parties time to meet and confer about the various deadlines that this court should set in this adversary proceeding and/or court-ordered mediation. This court also directed the parties to file a status report by 4/3/18, but the parties have not done so.
There is no tentative ruling, but the parties are directed to address why they have not filed a status report, and to provide an oral status report, and are cautioned that continued failure to adhere to the applicable rules and orders of this Court may result in sanctions. The tentative ruling is to continue this status conference to 5/29/18 at 11:00 a.m. with a brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties requested a brief continuance of this status conference from 2/27/18 to today's date (see Joint Status Report, adv. dkt. 10). At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). There is no tentative ruling, but the parties should be prepared to discuss the status of this case.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 3/6/18 at 11:00 a.m. Appearances are not required on 2/27/18.
Reasons: At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). The plaintiff and one defendant (the debtor) have now filed a joint status report (adv. dkt. 10) requesting a brief continuance.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address why they failed to file the required status report, and also the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l
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Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/6/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines/dates: This adversary proceeding has been pending since 11/21/17. The tentative ruling is to set the following deadlines/dates. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/6/18
Continued status conference: 2/27/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:18-01030 Construction Laborers Trust Funds for So Calif v. GRAYSON
fr. 5/22/18
Docket 7
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference, calendar no. 7, 6/12/18 at 11:00 AM.
Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference, calendar no. 5, 5/22/18 at 11:00 AM.
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference, calendar no. 2.10, 4/17/18 at 11:00 AM.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
Defendant(s):
RICKY TYRONE GRAYSON Represented By Ryan A Stubbe
Movant(s):
RICKY TYRONE GRAYSON Represented By Ryan A Stubbe
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Plaintiff(s):
Construction Laborers Trust Funds Represented By
Marsha M Hamasaki Jeffry D Sackman
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
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Adv#: 2:18-01030 Construction Laborers Trust Funds for So Calif v. GRAYSON
fr. 4/10/18, 4/17/18, 5/22/18
Docket 1
Tentative Ruling for 6/12/18:
Continue status conference to 10/16/18 at 11:00 a.m. for the reasons stated below. Appearances are not required on 6/12/18.
Current Issues.
Motion to Dismiss (adv. dkt.7). At the hearing on 4/17/18, this Court was persuaded to defer ruling on the motion to dismiss in view of the possibility that the issues would be litigated before the district court. On 5/9/18 plaintiff filed a motion for relief from stay to proceed with the district court litigation (2:16-bk-24010-NB, dkt. 117) (the "R/S Motion") and scheduled a hearing for this date on the 10:00 a.m. calendar. This court's tentative ruling for the R/S Motion is to grant that motion. Therefore, the tentative ruling for this matter is to take the motion to dismiss off calendar without prejudice to resetting it or filing appropriate papers after the district court litigation has been resolved.
(2 Deadlines: In viewof this Court's tentative ruling on the R/S Motion, the tentative ruling is to continue this status conference to the date and time stated at the start of this tentative ruling. The parties are directed to file a joint status report by 10/2/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Continue to 6/12/18 at 11:00 a.m. for the reasons stated in the status report (adv. dkt. 16). Appearances are not required on 5/22/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required. The court has reviewed the debtor’s motion to dismiss (dkt. 7), Plaintiff’s opposition (dkt. 14), the parties' joint status report (dkt. 9), Notice of Related District Court Case (dkt. 12) and the other filed documents and records in this adversary proceeding.
Paragraph "(2)" below is the tentative ruling on the motion to dismiss.
Paragraphs "(1)," "(3)," and "(4)" below are Judge Bason's standard requirements for status conferences, with additional provisions specific to this matter. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012)
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(implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
With respect to this specific matter, although nondischargeability complaints are prototypically "core" bankruptcy matters, this Bankruptcy Court is concerned about possible duplication of litigation and infringement on the District Court's management of the related nonbankruptcy action pending in that Court since 6/16/17. Should this Bankruptcy Court grant relief from the automatic stay (on this Court's own motion or the motion of either party) so that such litigation can proceed, and meanwhile hold this nondischargeability action in abeyance? Alternatively, are other approaches preferable, such as removal, or withdrawal of the reference, or bifurcation of issues? The parties are directed to address what is the most appropriate and efficient way to proceed.
Motion to Dismiss (dkt. 7)
The legal standards applicable to a motion to dismiss will not be repeated here because they are well known and have been summarized in the parties' filed papers. The tentative ruling is to grant the motion to dismiss the first and second claims for relief, with leave to amend, for the following reasons.
11 U.S.C. 523(a)(2)(A): false representation etc.
The debtor/defendant seeks dismissal of the first claim for relief, under section 523(a)(2)(A), on the ground that the plaintiff has not alleged that he obtained money, property, services, or credit from plaintiff as a result of the alleged fraud. The debtor/defendant argues (adv. dkt. 7, pp.6:23-7:3) that any alleged misrepresentations occurred in reports filed after the employees had performed services for the prior month and therefore after the debt was incurred, so the money or property at issue was not "obtained by" the alleged fraud.
On the one hand, the motion to dismiss is not entirely persuasive on this point. Reading the complaint in the light most favorable to the plaintiff as this Court must do when addressing a motion to dismiss, the complaint (adv.
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dkt. 1, p.1, para. 25) alleges that as a result of an ongoing pattern of false reports the Trust Funds (whom the plaintiff represents) missed opportunities to assert claims against the debtor/defendant's general contractors, which allegedly would have resulted in recovery of funds to cover the dollar amounts owed to the Trust Funds. In other words, if the Trust Funds had known of the (allegedly) false representations in those reports (or the allegedly fraudulent nature or false pretenses in those reports) then, allegedly, the Trust Funds could have pursued remedies that apparently are no longer available to them, so the fact that the reports were filed after the services were rendered each month is not dispositive.
But the complaint does not explain how the Trust Funds' missed opportunity amounts to obtaining money, property, services, or credit from plaintiff as a result of the alleged fraud. Rather, it appears that the (allegedly) false reports enabled the debtor/defendant to continue obtaining services from the employees (without providing those employees all of the compensation to which they were owed, in the form of funds that should have been transferred to the Trust Funds for the benefit of the employees).
Compare In re Kay, 60 B.R. 174, 176 (Bankr. C.D. Cal. 1986) (liability based on fact that "the employee beneficiaries" sustained damages as "the proximate result of the defendants' representations") (emphasis added).
In sum, there are not enough allegations in the complaint to show a causal connection between the alleged falsehoods of the debtor/defendant and some sort of damage to the plaintiff. It is possible, of course, that the plaintiff stands in the shoes of the employees for these purposes, but the complaint does not include sufficient allegations (or copies of documents) for this Court to read the complaint that way. It is also possible that the plaintiff itself has been damaged - e.g., perhaps the plaintiff is liable to the employees if it did not detect and cure the alleged falsehoods in the debtor/defendant's reports, and thus the plaintiff itself has been damaged - but again the complaint does not include sufficient allegations (or copies of documents) for this Court to read the complaint that way.
For all of these reasons, the tentative ruling is to grant the motion to dismiss the first claim for relief, with leave to amend. The tentative deadline for filing an amended complaint is 5/1/18.
The debtor/defendant has raised a separate argument with respect to the first claim for relief. The tentative ruling, however, is to reject the
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debtor/defendant's alternative argument (adv. dkt. 7, pp.7:23-8:5) that, under Rule 9(b), Fed. R. Civ. P. (incorporated by Rule 7009, Fed. R. Bankr.P.), the complaint is not sufficiently precise about the amount of hours that were falsely under-reported in each report. The complaint sufficiently apprises the debtor/defendant of the grounds of the alleged fraud, and any greater specificity is a matter for discovery and proof at trial, not a defect in pleading.
11 U.S.C. 523(a)(4): fraud or defalcation while acting in a fiduciary capacity, etc.
The debtor/defendant seeks dismissal of the second claim for relief, under section 523(4), on the ground that the complaint lacks sufficient allegations that he is a fiduciary with respect to the funds at issue. The tentative ruling is that this is correct.
The complaint alleges that "amounts withheld from employee wages meant to be transmitted to the Vacation Trust" became assets of that trust "'as of the earliest date on which such contributions ... can reasonably be segregated from the employer's general assets.'" Complaint (adv. dkt. 1), p. 8, para.30 (emphasis added, quoting 29 C.F.R. 2510.3-102). In response the debtor/defendant argues (adv. dkt. 7, pp.9:12-15): "Plaintiff has failed to allege that such withholdings actually occurred and when such employee wage withholdings could be 'reasonably segregated from the employer’s general assets.' Without such allegations, Plaintiff has failed to adequately allege that plan assets are at issue." (Emphasis added.)
To illustrate, consider the following hypothetical situation. Suppose that the debtor/defendant was paid $10X by a customer, but had obligations at that time of $15X consisting of $5X owed to employees for their base pay,
$1X that should have been transmitted to the Vacation Trust but was not, and
$9X for various other business expenses such as rent and income taxes. Did the $1X ever become segregated (withheld from wages) to the extent that it became a separate fund as to which the debtor/defendant had fiduciary obligations, or was the $1X only one contractual debt among many, with no segregated fund and therefore no associated fiduciary obligations?
In a similar vein the debtor/defendant also argues (adv. dkt. 7, pp.9:16- 10:17) that the allegations about purported control over plan assets are conclusory, that unpaid contributions to employee benefit funds are not plan assets, and that there are insufficient allegations in the complaint to establish that there was any pre-existing fiduciary relationship. The tentative ruling is
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that all of these arguments are persuasive.
The debtor/defendant cites persuasive authority in support of the foregoing analysis. It is one thing if an employer misuses employee contributions to a trust fund, but if the funds have never reached the employee and instead are contributions that the employer was supposed to make then the failure to pay that contribution is not, by itself, enough to establish a fiduciary relationship with respect to those funds. See In re Quinones, 537 B.R. 942, 945 n.2 (Bankr. N.D. Cal. 2015) (distinguishing employer contributions "from the situation where an employer has control over funds that were withheld from employees' paychecks"). The complaint does not include sufficient allegations to determine which type of contribution is at issue.
In sum, the complaint does not contain enough allegations about the precise relationships among the parties so as to be able to figure out when the debtor/defendant's duties arose and to whom. The tentative ruling is to set the same deadline to amend the complaint as for the first claim for relief.
Unless this Court is persuaded to depart from the foregoing tentative ruling it will be adopted as this Court's final ruling on the motion to dismiss. The debtor/defendant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge) at this time? The tentative ruling is to set a deadline of 5/1/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 2/5/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): TBD
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Expert(s) - deadline for reports: TBD
Expert(s) - discovery cutoff (if different from above): TBD Dispositive motions to be heard no later than: TBD
Joint Status Report: 6/5/18
Continued status conference: 6/19/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 4/17/18 at 11:00 a.m. to be heard concurrently with defendant's motion to dismiss. Appearances are not required on 4/10/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricky Grayson Represented By
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Yelena Gurevich
Defendant(s):
RICKY TYRONE GRAYSON Represented By Ryan A Stubbe
Plaintiff(s):
Construction Laborers Trust Funds Represented By
Marsha M Hamasaki Jeffry D Sackman
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
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Docket 5
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/21/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/26/18 at 1:00 p.m., to be concurrent with other hearings in this case. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
R44 LENDING GROUP, LLC a Represented By
Jeffrey S Shinbrot
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value of collateral [11 U.S.C. section 506(a), FRBP 3012]
Docket 24
- NONE LISTED -
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron
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Docket 28
Grant the motion (dkt. 28), as amended (dkt. 29), on a final basis. Appearances are not required.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form F2081- 1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments
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on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506 (c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
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Automatic postpetition perfection. Any automatic perfection
of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron
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fr. 5/29/18
Docket 17
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/12/18 at 1:00 p.m.).
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference (calendar no. 2, 5/29/18 at 1:00 p.m.).
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron
Movant(s):
Karla Enid Ramirez Represented By Lionel E Giron
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Docket 7
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 17, 29, 41). Grant the budget motion on a final basis (i) as deemed amended by the latest bankruptcy Schedules I and J (dkt. 41) and (ii) subject to a requirement that, no later than 6/19/18, the debtor must file a declaration showing how it is reasonable to estimate self employment taxes of only $100 per month (see dkt. 41, Sch.J, line 16) or, alternatively, file a declaration establishing a higher dollar amount and lodge a proposed order amending the approved budget accordingly.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and include a provision that the budget is deemed amended by dkt. 41. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 7/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Amended Schedule I (dkt. 26). Bankruptcy Schedule I, paragraph 8a, requires a separate statement for any rental property showing gross receipts, ordinary and necessary expenses, and net income. The debtor has not complied. Why not?
Budget motion (dkt. 17, 29). Nothwithstanding the foregoing, this Court has reviewed the cash collateral motion (dkt. 28), which appears to set forth the gross receipts, expenses, and net income of the subject property. Based on the presumption that this is included in the budget for which the debtor seeks approval, the tentative ruling is to grant the budget motion as amended (dkt. 29), on an interim basis, subject to a final hearing at the same date and time as the continued status conference set froth below. By no later than 6/8/18, the debtor must (i) correct the above-referenced omission from bankruptcy Schedule I and the budget motion, (ii) provide notice of the final hearing on this motion via U.S. Mail to all parties in interest, and (iii) file a proof of service.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
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U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron
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Docket 7
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. The debtor's proofs of service continue to be defective. Elizabeth Cruz declares that she has served the "PROOF OF SERVICE" itself, not the underlying orders. See dkt. 20 at PDF p.2 and dkt. 31 at PDF
p.2. It is true that an unsigned cover page on one of those documents asserts on behalf of the debtor that "All parties were served on April 11, 2018" with a copy of the bar date order, but that is inadequate.
At the hearing counsel is directed to explain why the proofs of service are defective, and what steps will be taken to correct this issue so that it no longer occurs. The deadline is 6/19/18 to file further amended proofs of service of both orders (the order setting principal status conference etc. at dkt. 6, and the bar date order at dkt. 23).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). See above.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/7/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 13). Counsel must address:
Income as of petition date or current? The debtor has filed an amended bankruptcy Schedule I (dkt. 30). Is that actually intended to be a decaration of postpetition income, or a correction of the debtor's income as of the petition date?
Amended budget motion? Should an amended budget motion needs to be filed and served, or is such notice unnecessary and should the budget be deemed amended, in view of what appears to be an increase of approximately $168 in the debtor's monthly income (compare dkt. 13 at PDF p.8, debtor's personal income of $2,800, with dkt. 30, line 7, debtor's personal income of $2,968)?
Cash collateral motion (dkt. 12). Grant on a final basis, on the same terms as the interim order (dkt.24).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). Note: Timely served? Per the proof of service (dkt. 26, the "POS") the debtor served the POS itself on creditors. Presumably the debtor means that she served the order on creditors (not the POS), but the debtor is directed to file an amended POS saying so, no later than 5/3/18.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written
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status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Failure to serve order. This Court's order setting this status conference (dkt. 6) directed the debtor to serve a copy of that order on all parties in interest no later than 14 days prior to this status conference. No proof of service appears on the docket. The tentative ruling is to set a deadline of 4/11/18 for the debtor to effect such service, with a caution to counsel that in future such failure may result in sanctions.
Budget motion (dkt. 13). Grant on an interim basis, with a final hearing on the same date at the continued status conference set forth below.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
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Docket 172
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 2, 6/12/18 at 2:00 p.m.).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
Docket 19
Tentative Ruling for 6/12/18:
Continue as set forth below. Appearances are not required on 6/12/18.
Current issues.
Motion to Extend (1) Time to Assume or Reject Leases and (2) Term of Store Closing Sales (dkt. 172). The tentative ruling is to grant this motion. The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
B&B Bachrach, LLC Post-Confirmation Status Conference (2:17- bk-15292-NB). The tentative ruling is to continue the post-confirmation status conference to the date and time set forth below to be heard concurrently with the continued status conference in the B&B Liquidating, LLC case.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: 8/31/18
Continued status conference: Continue to 8/14/18 at 2:00 p.m.
Brief written status report due 7/31/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/29/18:
Continue as set forth below. Appearances are not required on 5/29/18.
Current issues. This Court has reviewed the debtor's status report (dkt. 171), and other related pleadings.
Untimely Status Report and April MOR. This Court's tentative ruling for 5/1/18 (see below) directed the debtor to file a brief status report by 5/15/18, but the debtor did not file a status report until 5/18/18. Further, debtor did not file its April MOR until 5/23/18. The debtor is cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: 8/31/18
Continued status conference: Continue to 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
Current issues.
Background. At a post-confirmation status conference on 4/17/18 for B&B Bachrach (2:17-bk-15292-NB), debtor's counsel discussed the status of that case as well as the B&B Liquidating case. At counsel's request, this Court set a tentative bar date of 6/29/18, but advised counsel that this Court would hold off on issuing the bar date order (and may push the bar date back)
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pending resolution of the claims/noticing agent issues raised sua sponte by this Court.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to grant the motion on a final basis, as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), the amended budget (dkt. 65), and the second amended stipulation (dkt. 141). The debtor is directed to serve and lodge a proposed order via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Tentatively set as 6/29/18. DO NOT serve any notice at this time (this Court will prepare an order after the claims/noticing issues are resolved)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: continue to the date set forth at the start of this tentative ruling, brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances are not required.
Current issues. This Court has reviewed the debtor's status report (dkt. 78) and the other filed documents and records in this case.
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an a final basis.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on a final basis.
Cash Management Motion (dkt. 6). The tentative ruling is to grant
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the motion on a final basis.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to grant the motion on a final basis.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to authorize consensual use of cash collateral as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), and the amended budget (dkt. 65).
Proposed Orders. The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 7/31/18 DO NOT serve any notice at this time (this Court will prepare an order after the status conference)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: 5/29/18 at 2:00 p.m., brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/22/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear (and pursuant to LBR 9075-1, any response may be presented orally).
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. As of the time when this tentative ruling has been
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prepared, there is no proof of service of the debtor's motions. The following tentative rulings are subject to (i) adequate proof of service and (ii) any oppositions presented at or prior to the hearing. In addition, rather than stating at length this Court's reasoning, the following tentative rulings adopt, to the extent relevant, the reasoning of this Court regarding similar motions in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46-47).
Notice/Service. Pursuant to LBR 9075-1(a)(2)(B), this Court has already orally and conditionally granted the debtor's request to shorten time on the motions identified below, subject to the right of any party in interest to object at or before the hearing to the adequacy of notice. With those limitations, the tentative ruling is to find notice adequate and grant the debtor's requests in its motions (e.g., dkt. 5, p.3:3-5) to excuse any requirement for telephonic notice provided that overnight delivery or other permissible expedited service (e.g., personal delivery, or email as permitted by applicable rules) has been delivered no later than 24 hours prior to this hearing to all persons with a pecuniary interest that could be adversely affected by the relief requested in each motion.
Immediate relief. With respect to any immediate relief described below, the tentative ruling is that the debtor has shown sufficient cause for such immediate relief under Rule 6003 (Fed. R. Bankr. P.), to the extent applicable, and the other rules and procedures governing relief on an emergency or expedited basis.
Limit Notice Motion (dkt. 3). The tentative ruling is to grant this motion, subject to the following adjustments. First, the Limited Service List must be augmented to include (i) junior lienholder Emerald Capital Funding, LLC ("Emerald") and (ii) the debtor's own bankruptcy counsel (because the motion apparently contemplates that all parties in interest - not just the debtor
- will be authorized to use the Limited Service List). Second, this Court contemplates limitations that parallel this Court's modifications to the parallel order in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 53).
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Management Motion (dkt. 6). The tentative ruling is to grant
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the motion on the following conditions on an interim basis, with a final hearing at the same time as the continued status conference set forth below. No later than 2/23/18 the debtor must file a declaration of its CFO or other appropriate person certifying that, first, the debtor has taken measures to assure that prepetition debts are not paid out of its existing accounts (e.g., stopping payment on prepetition checks, except to the extent authorized by this court), and second, the debtor is maintaining sufficiently detailed books and records that, if it becomes necessary to analyze the debtor's finances as of the petition date, such analysis will not be impaired by the non-closing of the debtor's prepetition accounts.
Lease Rejection Motion (dkt. 7). The tentative ruling is to grant the motion on a final basis.
Employee Wages Motion (dkt. 8). The tentative ruling is to grant this motion immediately and on a final basis as to the employees, and to grant it as to the retention of Modern HR, Inc. ("HR") either immediately or at a continued hearing if the debtor can provide an offer of proof or evidence that HR's rates are within normal market rates for comparable services.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to approve the retention of Great American Group LLC and Tiger Capital Group LLC (collectively, "Liquidation Consultant") subject to the filing, no later than 2/23/18, of a satisfactory statement of Liquidation Consultant's distinterestedness on Local Form F 2014-1.STMT.DISINTEREST.PROF. In addition, the tentative ruling is to authorize the proposed sales of the debtor's inventory and furniture, fixtures and equipment ("FF&E"), free and clear of any liens, claims, encumbrances or other interests of all persons/entities who have been served with the motion, with all such interests to attach to proceeds of such sales, under 11 U.S.C. 363(b) and (f)(1), (2) and (5), for the reasons stated in the motion papers. In addition, the tentative ruling with respect to compliance with nonbankruptcy liquidation laws, restrictions in leases, and abandonment of property is to track the limitations in this Court's interim order on the parallel motion in the Bachrach case (no. 2:17-bk-15292- NB, dkt. 71). In addition, the tentative ruling is to grant all such relief on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Collateral/DIP Financing (dkt. 21, 22). The parties should be
prepared to address the following issues. (i) Is there any evidence that the debtor is "unable" to obtain credit by granting a "senior or equal lien" to the
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lien of Siena Lending Group, LLC ("Siena"), within the meaning of 11 U.S.C. 364(d)(1)(A)? (ii) Why would it be appropriate for this Court to approve a roll- up, cross-collateralization, and other provisions that generally are disapproved (see dkt. 22)? (iii) Why should this Court grant broader relief in this case than it did in approving a similar motion in the Bachrach case (no.
2:17-bk-15292-NB, dkt. 46, Ex.A, pp.5-9, and dkt. 50)? The tentative ruling is to authorize either consensual or non-consensual use of cash collateral and, if the terms can be modified sufficiently to be acceptable, the proposed DIP financing, on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Notice of continued hearings. The tentative ruling is to set a deadline of 2/27/18 for the debtor to file and serve a notice of the final hearing on all motions that are only granted on an interim basis, and to set the same deadline for the debtor to file any supplements or amendments to such motions, with deadlines of 3/6/18 for any opposition and 3/13/18 for any reply.
Proposed Orders. This court intends to file these tentative rulings on the docket (with the caption, "Memorialization Of Tentative rulings" or the like). Thereafter, if appropriate, all orders can grant or deny relief "for the reasons stated in the Memorialization Of Tentative Rulings (dkt. ), as modified or supplemented on the record at the hearing" (or similar language). The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
In view of the shortened time on the foregoing motions, parties in interest may appear and dispute the foregoing tentative rulings without prior notice to the debtor or the court (contrary to the usual requirements for "tentative rulings" under Judge Bason's Procedures, posted at www.cacb.uscourts.gov).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: March 20, 2018 at 2:00 p.m., status report due 3/6/18. (see order, dkt. 18).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
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1/23/18, 02/13/18, 5/1/18, 5/29/18
Docket 1
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 2, 6/12/18 at 2:00 p.m.).
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 4, 5/29/18 at 2:00 p.m.).
Tentative Ruling for 5/1/18:
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required.
Current Issues.
B&B Liquidating, LLC (2:18-bk-11744-NB). On 2/16/18 B&B Liquidating LLC ("BBL") filed a chapter 11 petition for relief before this court. In its "first-day" motions, BBL details the troubles B&B Bachrach ("BBB") encountered post-confirmation, which resulted in the need to liquidate. See
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e.g., BBL Liquidating Motion, dkt. 17.
BBB should be prepared to address the debtor's progress in liquidating the estate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Continue to 4/17/18 at 2:00 p.m. in view of the debtor's post-confirmation status report (dkt. 313). Brief status report due 4/3/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue to 2/13/18 at 2:00 p.m., in view of (a) the debtor's status report (dkt. 313) and (b) the inability of the Office of the United States Trustee to appear on 1/23/18 in view of the shutdown of much of the federal government. Note: Prior to 2/13/18 this court anticipates posting a tentative ruling for a further continuance to 4/17/18 at 2:00 p.m., unless a party in interest files a status report no later than 2/6/18 requesting to be heard on 2/13/18. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Continue to 11/7/17 at 2:00 p.m. to be heard concurrent with the fee applications. Appearances are not required on 10/17/17.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/12/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any outstanding disputes with landlords, or other issues that are appropriate for disposition at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
B&B Bachrach, LLC Represented By Brian L Davidoff
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Docket 1
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 186, 187, 188). At the status conference this Court will address changes that need to be made to the amended disclosure statement and amended plan prior to service on creditors.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 186, 187): At the status conference this Court will discuss deadlines for filing an amended disclosure statement and plan, and whether to set hearing(s) on final approval of the disclosure statement and whether to approve the plan.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required by counsel for the debtors but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Joint Plan/ Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 176, 177, 178). At the status conference this Court will address numerous issues with these documents.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Joint Plan/Disclosure Statement* (dkt. 176, 177): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
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Motion for Relief from Stay (dkt. 48). In light of the proposed
settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Fresco Adversary Proceeding (adv. case no. 2:17-ap-01558-NB), including motion to remand (adv. dkt. 8). The tentative ruling is that this matter will be mooted, assuming that this Court approves the parties' proposed settlement, and therefore this matter should go off calendar. The parties are reminded to file appropriate papers to have this matter dismissed once the settlement is fully implemented.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be
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prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt.
90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
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Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this
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motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative
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ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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Docket 1
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement (dkt. 175, 176).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 177), appear to be identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 186, 187, 188. Counsel are directed to alert this Court and the parties at the hearing if they are not.
For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/12/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 175, 176): At the status conference this Court will discuss appropriate deadlines.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required.
Current issues.
Joint Plan/Joint Disclosure Statement (dkt. 165, 166).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 167). are substantially identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 176, 177, 178. For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 5/8/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Joint Plan/Disclosure Statement* (dkt. 166, 167): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 57). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues
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appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt.
90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
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Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
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not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
fr. 4/9/18, 4/10/18, 5/8/18
Docket 10
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 7, 6/12/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 8, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 2:00 p.m. for the reasons stated on the record on 4/9/18. Appearances are not required on 4/10/18.
Tentative Ruling for 4/9/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether this court should grant Checkmate's request for an expedited hearing and issue an order granting a temporary restraining order and order the immediate turnover of the Collateral pursuant to Checkmate's claim and delivery action.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Pro Se
George Tyler Fower Pro Se Siemens Medical Solutions USA Inc Pro Se
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
(2) Claim and Delivery; (3) Conversion; (4) Breach of Guaranty;
(5) Fraud; (6) Preliminary Injunction; and (7) Constructive Trust fr. 5/8/18
Docket 1
Tentative Ruling for 6/12/18:
Appearances required.
Current Issues.
Joint Status Report and Notice of Continuances. This Court's 5/8/18 tentative ruling (see below) was not opposed, so it became this Court's actual ruling.
This Court directed (i) Checkmate to file and serve a notice of continuances attaching and incorporating by reference the deadlines in that tentative ruling by 5/7/18, and (ii) the parties to file a brief joint status report by 5/29/18. As of the preparation of this tentative ruling, none of the parties have complied. The parties are cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Motion for TRO & Claim and Delivery (adv. dkt. 10).
Plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") has filed a stipulation (adv. dkt. 30) with defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") for turnover of equipment. But Checkmate has not provided any evidence that it has relief from the automatic stay and consent of the Chapter 7 Trustee in the RS and Fower bankruptcy cases for such turnover (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA). The tentative ruling is to set a deadline of 6/19/18 for Checkmate to file a declaration attaching evidence sufficient to establish those things, and lodge a revised proposed order to approve the stipulation.
Deadlines: This adversary proceeding has been pending since 3/6/18. It
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is premature to set a discovery cutoff and other deadlines at this time. Continue to 7/17/18 at 2:00 p.m., brief joint status report due 7/3/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
The tentative ruling is to continue all pending matters in this adversary proceeding to 6/12/18 at 2:00 p.m. for the reason stated below, with a brief joint status report due 5/29/18, and with a deadline of 5/7/18 for the plaintiff to file and serve a notice of continuances attaching and incorporating by reference the deadlines in this tentative ruling (assuming that this Court is not persuaded to depart from this tentative ruling). Appearances are not required on 5/8/18.
Current Issues. This Court has reviewed the parties' status reports (adv. dkt. 24 & 26) and the other filed documents and records in this adversary proceeding.
Motion for TRO & Claim and Delivery (adv. dkt. 10). At the 4/9/18 hearing on this motion, counsel for plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") apprised this Court of the bankruptcy filings of defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA) and requested a continuance of this hearing to allow time to obtain orders granting relief from stay with annulment. In the Joint status report (adv. dkt. 24), Checkmate states that the hearings on the relief from stay motions are scheduled for 5/15/18. Accordingly, the tentative ruling is to continue this motion to the date and time set forth at the start of this tentative ruling.
Siemens Motion to Dismiss (adv. dkt. 27, the "MTD"). Defendant Siemens Medical Solutions USA, Inc. ("Siemens") has properly self-
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calendared its MTD for 6/12/18 at 11:00 a.m. Siemens anticipates that it may be voluntarily dismissed by plaintiff (see adv. dkt. 24), but if that does not occur then this Court anticipates that the MTD may take 15 minutes or more to hear. This Court's practice is that matters anticipated to take 15 minutes or more are heard on the 2:00 p.m. calendar (not available for self-calendaring, except by permission of this Court). Therefore the tentative ruling is to re- calendar the MTD from 11:00 a.m. to 2:00 p.m., which is concurrent with the other matters in this adversary proceeding that are on today's calendar.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Pro Se
George Tyler Fower Pro Se Siemens Medical Solutions USA Inc Pro Se
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
Docket 27
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 7, 6/12/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Represented By Vatche Chorbajian
George Tyler Fower Represented By Vatche Chorbajian
Siemens Medical Solutions USA Inc Represented By
Marsha A Houston
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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Docket 188
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
and Assign Unexpired Non-Residential Real Property Lease
Docket 187
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 05/03/18
Docket 112
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 36
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 308
This matter will be heard on 6/12/18 at 3:00 p.m., to be concurrent with the other matters on for hearing in this case. Appearances required at that time (see Order, dkt. 310).
The tentative ruling is to grant extension of the exclusivity period under 11
U.S.C. section 1121, up to and including 11/15/18, subject to any opposition at the hearing.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
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to Utility Companies for Post-Petition Services and Prohibiting Alteration, Refusal, or Discontinuance of Utility Services
fr. 5/29/18
Docket 7
Tentative Ruling for 6/12/18:
Grant on a final basis, based on the debtor's timely service (dkt. 23) of this Court's interim order (dkt. 21) and the lack of any filed opposition as of the time this tentative ruling has been prepared. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Subject to any opposition at the hearing, the tentative ruling is to grant the motion on an interim basis with a final hearing on 6/12/18 at 2:00 p.m.
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
R44 LENDING GROUP, LLC a Represented By
Jeffrey S Shinbrot
3:00 PM
Docket 187
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
3:00 PM
Docket 188
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
3:00 PM
Docket 103
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
3:00 PM
Docket 224
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem
3:00 PM
Docket 214
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
3:00 PM
Docket 216
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
3:00 PM
Docket 266
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
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Docket 240
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
3:00 PM
Docket 36
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
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Docket 5
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
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fr. 5/3/18, 5/7/18
Docket 93
Debtor(s):
Dana Hollister Represented By David A Tilem
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Docket 112
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
2D COPY OF DRAFT TENTATIVE RULING (AS OF early 5/7/18) (BACKUP).
Tentative Ruling for 5/7/18:
Appearances required.
Current issues.
Urgency. The matters set forth below are all colloquially known as "first day," "emergency," or urgent motions that typically would have been resolved by now, except that the facts could not be determined without (expedited) discovery. See dkt. 175 (discovery order). In addition, the motion for relief from the automatic stay is generally subject to a 30-day limit (11
U.S.C. 362(e)), although that has been extended in this case. See LBR 4001-1(c)(3).
Cash collateral & budget motions (dkt. 5, 14, 15, 29, 74, 151, 152, 163, 164, 167-68, 171, 176; and 96, 146, 161).
Legal standards, generally. A chapter 11 debtor who is in possession of the bankruptcy estate (11 U.S.C. 1101(1)) has the duties of a trustee for the benefit of creditors (11 U.S.C. 1107), including a fiduciary duty to protect and conserve property of the estate. See, e.g., In re McConville,
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110 F.3d 47, 50 (9th Cir. 1997). Just like a trustee, the debtor may use, sell, or lease property of the bankruptcy estate in the "ordinary course of business" (11 U.S.C. 363(c)(1)), but may not use any property "other than in the ordinary course of business" without authorization from the Bankruptcy Court after notice and a hearing. 11 U.S.C. 363(b)(1).
In addition, if property at issue is the "cash collateral" of any entity (as defined in 11 U.S.C. 363(a)) then the debtor may not use it at all without prior authorization (or the consent of the entities with an interest in that cash collateral). 11 U.S.C. 363(c)(2).
Any entities with an interest in property of the estate may request that the court require the debtor provide "adequate protection" to them. 11 U.S.C. 363(e). The Bankrupcy Court "shall" condition or prohibit any proposed use, sale, or lease of property to the extent necessary to provide such adequate protection.
Adequate protection may include periodic cash payments, replacement liens, or other things. 11 U.S.C. 361. But those things must protect the economic interests of the entities with an interest in property of the estate. Id.
Legal standards, as applied to individual debtors. There is not a great deal of authority about how to apply the foregoing standards to individual debtors. First, if the ordinary course of "business" were read to mean only commercial business then theoretically a debtor essentially would not be authorized to spend anything without prior court authorization. See In re Goldstein, 383 B.R. 486 (Bankr. C.D. Cal. 2007).
But ordinary living expenses are implicitly part of an individual debtor's everyday "business." Thus, the debtor is automatically authorized by section 363(b) to use property of the estate (except cash collateral) without court approval for such basics such as food, shelter, and ordinary and necessary expenses such as personal care products and some entertainment. See In re Seely, 492 B.R. 284, 289-91 (Bankr. C.D. Cal. 2013).
Second, just like commercial business transactions, individual debtors' transactions probably are subject to both (A) a "veritcal" or "creditors' expectation" test and (B) a "horizontal" test. See Seely, 492 B.R. 284, 289-91 & n.7 (applying In re Dant & Russell, Inc., 853 F.2d 700, 704-05 (9th Cir.
1988)).
The "vertical" or "creditors' expectation" test asks whether the transaction at issue subjects a hypothetical creditor to economic risks of a nature different from those the creditor accepted when deciding to extend
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credit. This compares the debtor's proposed postpetition transaction with the debtor's prepetition background to see if there is a history of similar transactions. Dant & Russell, 853 F.2d 700, 704-05. The "horizontal" test asks whether persons who are similarly situated to the debtor ordinarily would engage in such transactions. Id.
Debtors sometimes take an overly aggressive view of what is the "ordinary course" of their business. Therefore a budget motion is required under the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov). Compare Seely, 492 B.R. 284, n.5 & accompanying text (Bluebond, J., declining to require debtors to file budget motions, but cautioning that it might be advisable to seek prior authorization for any budget).
Once it is determined that section 363(b)(1) applies - i.e., that court authorization is required (beyond any authorization required for use of cash collateral) - it is unclear what standards the Bankruptcy Court should apply in deciding whether or not to authorize a proposed expenditure. See In re Villalobos, 2011 WL 4485793 (9th Cir. BAP 8/19/11) (noting uncertainty, and remanding on that issue). The parties have not briefed that issue.
The tentative ruling is that the debtor bears the burden to establish that the proposed expenditure is in the best interests of the estate. See Goldstein, 383 B.R. 496, 502. For example, in a situation involving divorcing debtors, it was held that each debtor had to show that employment of special counsel to handle not only the property division aspect of the divorce but also the dissolution aspect was "for the benefit of the estate and not for the debtor's personal benefit." Id. But because dissolution of the marriage was essential to disentangle the debtors' domestic lives, and move forward with the bankruptcy case, it was held that it was appropriate to authorize employment of counsel to handle both dissolution and property division.
Note that the foregoing test under section 363(b)(1) is in addition to, not in place of, the requirement for adequate protection under section 363(e). Therefore the relevant questions are as follows. First, does the proposed budget of the debtor, Ms. Hollister, use cash in which Bird Nest or RCALA have an interest and, if so, has the debtor met her burden to show that those interests are adequately protected? Second, does the proposed budget include transactions that are out of the ordinary course and, if so, has the debtor met her burden to establish that the proposed expenditures are in the best interests of the estate?
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... [BACKGROUND RE CASH FLOW & ASSETS/APPRAISALS]
[CASH COLLATERAL]
Insurance. The debtor has provided evidence that the insurance policy premiums of $1,065/mo. are "ordinary" under the vertical test. because she apparently has been paying them for several years (she declares that she purchased the policy in 2012). See dkt. 161, p.4, para. 3. But the debtor provides no argument or evidence that the expense of a $3 million insurance policy is "ordinary" under the horizontal test. Therefore, court approval is required under section 362(b)(1), and the debtor bears the burden to show that the proposed expenditure is in the best interests of the estate.
In addition, the debtor must show that paying for $3 million of coverage is consistent with providing adequate protection to Bird Nest and RCALA.
Car payments. The debtor pays $ /mo. for her vehicle, consisting of both payments on the car loan balance of approximately
$68,000 and "what appears to be 3 years of pre-paid maintenance." Dkt. 161, p.3:5. The debtor states that she is not opposed to seeking to refinance this debt, when she has more time. Dkt. 161, p.5, para. 11.
...
Relief from stay motion (dkt. ).
Motion to authorize transaction out of ordinary course re Bridge Tavern, LLC ("Bridge") (dkt. 112, 140, 150, 156) and motion to employ Urbanlime Real Estate (Leslie Haro) ("Urbanlime") (dkt. 93, 121, 133, 134, 142, 157, 177, 179). No written opposition has been filed to the motion to liquidate and wind up Bridge (dkt. 112, the "Bridge Motion"). It is also supported by the Committee (dkt. 140). The motion to employ Urbanlime (dkt. 93, the "Urbanlime Motion") is opposed by Pierre Casanova, a co-owner of LLCs related to the Cliff's Edge restaurant. It is supported, however, by the Committee (dkt. 142).
Several aspects of these related motions are troubling. The debtor apparently has disregarded her duties as a trustee for the benefit of creditors by: (i) entering into a commitment to transfer the Bridge leasehold without the landlord's consent, (ii) reopening the Bridge business without notice or
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authorization by this Court, (iii) hiring a professional, out of the ordinary course of her business, to retroactively create books and records, without any notice or assurance that the professional is disinterested and qualified, (iv) marketing businesses for sale before having reliable books and records for those businesses, thereby possibly chilling the current bidding and any future sales, (v) hiring Urbanlime as a broker without without safeguards required by this Court, and (vi) marketing and entering into an agreement to sell the Cliff's Edge-related LLCs without proper notice to, let alone authorization by, the co- owner of those LLCs.
Landlord.
Attached to the Bridge Motion is an agreement to sell the business for
$495,000 (the "Bridge Agreement"), and although that agreement is expressly contingent on this Court's approval (dkt. 112, Ex.1, para. 24) it does not appear (from this Court's brief review) to include any contingency for approval by the landlord. After the Bridge Motion was filed, the debtor and landlord Odyssesus Investment Group, LLC ("Bridge Landlord") stipulated (dkt. 150) to continue the hearing - presumably to address whether the landlord will consent to the assignment of the leasehold.
Is this Court misinterpreting the record? Regardless, why did the debtor market the Bridge assets, enter into the Bridge Agreement, and file the Bridge Motion without obtaining the Bridge Landlord's consent, or even disclosing in the Bridge Motion that such consent was needed? What is the status of the debtor's negotiations with Bridge Landlord? Have those negotiations resulted in any new terms that would make the proposed Bridge Agreement less advantageous for the estate and/or require disclosure to creditors and an opportunity to object by amending and re-noticing the Bridge Motion? The tentative ruling is to set a deadline of 5/14/18 for the debtor to file and serve her declaration addressing those things.
Reopening the business. The debtor's reply in support of the motion to hire Urbanlime states (dkt. 157, p.3:4-6) that the Bridge business ("Villain's Tavern") previously was not operating but as of April 20, 2018 it has been reopened. Again, this revelation is troubling.
Has reopening the business cost the bankruptcy estate money? Is the debtor guaranteed to recoup that money?
This Court recognizes that, even if it involved some expense, reopening the business might be the best way to maximize the Bridge assets' value, or could be a good idea for other reasons. But that is not the point.
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The point is that, just as the debtor acknowledges that causing Bridge to sell its business is a transaction out of the ordinary course, so is causing Bridge to reopen its closed business. In other words, the debtor has used estate assets "other than in the ordinary course of business," requiring approval under 11 U.S.C. 363(b) (emphasis added). Why did the debtor act without Court authorization?
This Court recognizes that reopening the business might not cost the bankruptcy estate anything if the business is being funded and operated by the proposed new owner. But that in itself would be a transaction out of the ordinary course.
All of the foregoing raises the question what is actually meant by the debtor's delphic phrase that Villain's Tavern "has been reopened and is now operating." Dkt. 157, p.3:6. The tentative ruling is to set a deadline of 5/10/18 for the debtor to file and serve her declaration addressing those things.
"Controller" Jeffrey Garrison. The same reply in support of the Bridge Motion states (dkt. 157, p.2:3-8) that the debtor hired a "controller" after the petition date. The debtor apparently had not used a controller in the ordinary course of her businesses prepetition, because she admits (dkt. 157, p.2:9-17) that "in most cases" her "books and records were either non- existent, or rudimentary" and the controller is in the process of retroactively creating books and records from "source materials." Id.
It is true that usually a debtor engaged in business can hire regular employees, who may include controllers, bookkeepers, and the like, without having to seek authorization under 11 U.S.C. 327 or 363(b)(1). Likewise, if a debtor has used a non-employee tax accountant prepetition, it may be permissible to continue using that accountant postpetition without court authorization if the work is not central to the bankruptcy process but instead is part of the "ordinary course" operations of the debtor.
But this case does not appear to be anything like those situations. Mr. Garrison is a certified public accountant who was hired for his present tasks postpetition, and he does not appear to be an officer or employee of one or more of the debtor's businesses or the debtor herself. See dkt. 157, pp. 13- 14 (Garrison decl.). Rather, he appears to be an accountant who is retroactively creating books and records for use in this bankruptcy case, and who fits the classic definition of a professional whose employment must be authorized under 11 U.S.C. 327. See, e.g., In re That’s Entertainment Mktg.
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Group, Inc., 168 B.R. 226, 230 (N.D. Cal. 1994) (professional person is one who plays "an intimate role in the reorganization of a debtor's estate") (citations omitted).
The fact that Mr. Garrison's employment was not authorized is particularly troubling because none of the usual safeguards have been applied to assure that his employment is consistent with the best interests of the estate. Such safeguards are especially important when the person at issue has been hired to go through the debtor's "source documents" and retroactively create books and records. There is too much opportunity for whitewashing or other mischief when charged with such an important task.
Normal safeguards would include disclosing any "connections" with all parties in interest, providing evidence of qualifications, and proving that the proposed professional is disinterested and does not hold or represent any interest adverse to the bankruptcy estate. See 11 U.S.C. 101(14), 327(a) and Rule 2014 (Fed. R. Bankr. P.). Mr. Garrison's declaration does none of these things, except to declare that he has done "some work related to the Debtor's sole proprietorship businesses ...." Dkt. 157, p.13, para.5.
The tentative ruling is to set a deadline of 5/14/18 for the debtor and Mr. Garrison to file and serve declarations stating under oath all "connections" within the scope of Rule 2014, together with a motion for authority to employ Mr. Garrison (both retroactively and prospectively) under both section 327(a) and 363(b), to the extent that each may be applicable, and set that motion for hearing concurrent with the continued status conference.
Chilling the market? As noted above, the debtor concedes that most of the books and records with respect to her businesses are "either non-existent, or rudimentary," and her newly-hired controller is still in the process of attempting to construct books and records (dkt. 157, p.2:9-17).
Yet the debtor states that "Ms. Haro [Urbanlime] has been informally shopping the three Cliff's entities for months" (dkt. 157, p.4:5-6) and has been "test[ing] the market" for her businesses (dkt. 157, p.5:18-24).
Normally, in this Court's experience, a buyer of a business requires reliable historical books and records, or else will impose a steep discount. Has the debtor used appropriate business judgment in marketing the businesses already? Has the market been chilled, and the estate harmed?
The tentative ruling is to set a deadline of 5/14/18 for the debtor to file and serve her declaration addressing those things.
Employment of Urbanlime. The debtor has filed a separate
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motion to employ Urbanlime, not just for Bridge but for GJV, Inc. and the Cliff's Edge-related LLCs as well (dkt. 93, the "Urbanlime Motion"). That motion does not cite any section of the Bankruptcy Code, so it is unclear if Urbanlime's retention is sought to be approved under 11 U.S.C. 363(b) (as part of the use of the debtor's interest in Bridge out of the ordinary course) or under 11 U.S.C. 327 and/or 328 (retention of professionals).
The Committee supports that application (dkt. 142). That application nevertheless implicates the following issues.
First, this Court notes that Pierre Casanova, who is a 50% member with the debtor of the Cliff's Edge-related LLCs, has objected to Urbanlime's retention, but he takes no position with respect to Urbanlime's services involving Bridge or GJV, Inc. provided that the other LLCs' funds are not used to compensate Urbanlime. See dkt. 133, p.5, n.1. The tentative ruling is that any compensation to Urbanlime must come solely from proceeds of the transaction at issue, not from any other source.
Second, the Bridge Motion asserts that the application to hire Urbanlime "is probably not necessary" (dkt. 112, p.5:2), at least with respect to Bridge, because the sale, allegedly, is by the business not by the debtor herself. That assertion is not adequately supported.
For one thing, it is unclear whether the business purchase agreement (dkt. 112, Ex.1) is signed by the debtor in her personal capacity as well as on behalf of the business. Typed below her signature is "Dana Hollister/Bridge Tavern LLC." Dkt. 112, Ex.1, para. 46.
For another thing, the listing agreement with Urbanlime is also ambiguous. Its signature line (dkt. 93, Ex. C, at p.27) reads, "Clients: Dana Hollister, Pierre Casanova," which suggests that they are hiring Urbanline in their individual capacities. It is true that the listing agreement is signed solely by the debtor (not Mr. Casanova), and she uses the title "President" - i.e., perhaps she is purporting to sign as the managing member (colloquially, "President") of the LLCs? But Mr. Casanova objects that the debtor had no authority to sign the listing agreement, either for him or for the Cliff's Edge- related LLCs. See dkt. 133, 134, 177. Cf. dkt. 157, p.5:1-5 (debtor's reply, still ambiguous). In sum, it is ambiguous in what capacity the debtor has signed the listing agreement, and therefore whether Urbanlime is being hired by the estate or by Bridge.
For all of these reasons, the ambiguous documentation suggests that Urbanlime may be representing the debtor/estate, not just Bridge. That may
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be a problem because Urbanlime discloses that it might act as broker for both the buyer and the seller (it is unclear whether it has in fact done so) and the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) give notice such dual agency is disapproved for persons hired by the estate (due to actual and potential conflicts of interest).
Alternatively, even if Urbanlime is not being hired by the debtor/estate directly, the tentative ruling is that it would be inappropriate to authorize a transaction out of the ordinary course under 11 U.S.C. 363(b) that had the effect of authorizing the retention of a professional by Bridge, whose goal should be to maximize the sale price, when that professional also represents a buyer whose interest is to minimize the sale price (among other terms of any purchase and sale). In other words, whether Urbanlime's retention is included within the Bridge Motion (11 U.S.C. 363(b)) or the Unrbanlime Application (11 U.S.C. 327, 328 and/or 363(b)), the tentative rulingis that if Urbanlime is hired it cannot engage in dual agency: it must arrange for a separate agent for the buyer.
That is potentially a serious problem. As noted above, the Villain's Tavern business has been reopened, and it is not clear who is running it. If the sale of the Bridge business and leasehold has already effectively occurred, it is questionable whether it will be possible to "unscramble the eggs" and arrange for the seller (the debtor/estate) and the buyer to have representation that is truly independent.
The tentative ruling is to set a deadline of 5/14/18 for the debtor to file and serve declarations by the debtor and Ms. Haro addressing those things. Those declarations must include all "connections" within the scope of Rule 2014.
Lack of notice to, or authorization by, Mr. Casanova. Mr. Casanova asserts, and the debtor does not deny, that she cannot act for the Cliff's Edge-related LLCs without his consent. But rather than serve him with papers in this bankruptcy case, the debtor has served the LLCs at her own address. See dkt. 133, 134, 177. Cf. dkt. 157.
The debtor argues that there is no harm to Mr. Casanova because he ended up finding out about the proposed transactions, and he can withhold his consent if he chooses. See dkt. 157. The debtor ignores the fact that, by not serving Mr. Casanova properly, she has misused the bankruptcy process. She also ignores the fact that, by already marketing the Cliff's Edge-related LLCs when she lacked the right to sell them, she may have promised
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prospective buyers what she cannot deliver and thereby chilled the bidding for any future marketing and sale.
Conclusion as to Bridge and Urbanlime. The tentative ruling is also to deny the Urbanlime Motion with respect to the Cliff's Edge- related entities. If the foregoing concerns in sections (1)(c)(i)-(vi) are adequately addressed, the tentative ruling is (A) to grant the Bridge Motion and (B) grant the Urbanlime Motion solely with respect to Bridge and GJV, Inc. But first the appropriate declarations must be filed, and the tentative ruling is to continue the Bridge Motion and the Urbanlime Motion to the same date and time as the continued status conference, with any supplemental oppositions and replies due at the usual time prior to the hearing (under the Local Bankruptcy Rules).
Other employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt. 9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure), including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why were resumes for associates, paralegals, and persons who are "of counsel" to the firm not included? (ii) Has counsel waived or amended the provisions in the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined in the parties' papers)?
Proposed special counsel: the Snyder firm (dkt. 36, 37). (i)
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What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
(ii) What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: / / at 2:00 p.m., status report due / / .
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/3/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The only issue this Court intends to address is a continued hearing date in view of the last-minute papers that were filed, to fit the parties' and this Court's own needs.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear.
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash flow and cash collateral motion (dkt. 5, 14, 15, 29). This Court's written order (dkt. 29) erroneously lists the continued hearing as 3/20/18 instead of 4/17/18 at 2:00 p.m., as orally ordered at the hearing on 3/9/18. Nevertheless, it is appropriate in connection with this Status Conference to address the debtor's current and projected cash flow and related issues.
This Court was not persuaded at the hearing on 3/9/18 that the debtor can generate positive cash flow. The debtor is directed to provide a brief update on any plans to generate positive cash flow from her various businesses and properties. It is also appropriate for other parties in interest to address whether there has been adequate disclosure to date regarding the finances of those businesses and properties. The debtor is cautioned that the declaration due on 3/27/18 must provide comprehensive disclosures regarding those businesses and properties: if the debtor cannot show reasonable prospects for positive cash flow within a reasonable time then this Court might have to grant relief from the automatic stay (upon a proper motion), or convert or dismiss this bankruptcy case, at least if the debtor does not abandon unprofitable businesses or properties.
Employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt. 9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure), including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
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Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why
were resumes for associates, paralegals, and persons who are "of counsel" to the firm not included? (ii) Has counsel waived or amended the provisions in the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined in the parties' papers)?
Proposed special counsel: the Snyder firm (dkt. 36, 37). (i) What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
(ii) What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 4/17/18 at 2:00 p.m., status report due 4/3/18. (see order, dkt. 30).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/9/18:
[no tentative ruling was posted for this hearing]
Debtor(s):
Dana Hollister Represented By David A Tilem
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Roman Catholic Archbishop of Los Angeles vs
Hollister
fr. 4/17/18, 5/3/18, 5/7/18
Docket 68
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
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for Interim Use of Estate Property as Defined in 11 U.S.C. Sec. 1115
fr. 5/3/18, 5/7/18
Docket 96
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
3:00 PM
fr. 3/20/18, 4/17/18, 5/3/18, 5/7/18
Docket 20
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
3:00 PM
fr. 3/20/18, 4/17/18, 5/3/18, 5/7/18
Docket 18
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
For 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
For 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
3:00 PM
Docket 9
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
Please see the tentative ruling for the status conference (calendar no. 19, 3/20/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
3:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18
Docket 1
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Dana Hollister Represented By David A Tilem
9:00 AM
fr. 6/12/18
Docket 187
Appearances required. There is no tentative ruling. This Court will address scheduling any evidentiary hearing or other evidentiary issues, as well as any issues of law that do not require resolution of evidentiary issues.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
1:00 PM
DEPARTMENT OF EDUCATION
vs DEBTOR
Docket 4
Appearances required. There is no tentative ruling. Any opposition and any reply may be presented orally at the hearing (see Order, dkt. 8).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
Trustee(s):
Jason M Rund (TR) Pro Se
9:00 AM
Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
fr. 01/05/16, 02/23/16, 03/22/16, 4/5/16, 4/12/16, 5/16/16, 7/19/16, 8/9/16, 9/6/16, 10/11/16, 11/1/16,
2/21/17, 4/11/17, 5/23/17, 8/8/17, 9/12/17, 1/23/18
fr. 2/27/18
Docket 1
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
Plaintiff(s):
Official Committee of Creditors Represented By Christopher Celentino Peter W Bowie
9:00 AM
Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
Docket 47
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
Plaintiff(s):
Official Committee of Creditors Represented By Christopher Celentino Peter W Bowie
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
vs DEBTOR
Docket 63
- NONE LISTED -
Debtor(s):
Norman Jon Berg Represented By Alla Tenina
Movant(s):
Deutsche Bank National Trust Represented By Lee Gates
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
vs DEBTOR
Docket 56
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
10:00 AM
possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Hernandez Represented By Peter L Lago
Joint Debtor(s):
Ayrin Hernandez Represented By Peter L Lago
Movant(s):
Deutsche Bank National Trust Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 67
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Charles Edwin Foley Represented By Brian J Soo-Hoo
Joint Debtor(s):
Kimberley Renee Foley Represented By Brian J Soo-Hoo
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 43
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Dennis L Potter Represented By
James D. Hornbuckle
Joint Debtor(s):
Sheila M Potter Represented By
James D. Hornbuckle
Movant(s):
Wilmington Savings Fund Society, Represented By
Michelle R Ghidotti Kristin A Zilberstein
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 28
- NONE LISTED -
Debtor(s):
Danette I Cedeno Represented By Julie J Villalobos
Movant(s):
U.S. Bank National Association Represented By Christina J O Renee M Parker
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NA vs
DEBTOR
Docket 45
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 50).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Xavier A Amaya Represented By Stephen S Smyth William J Smyth
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
WELLS FARGO BANK N.A.
vs DEBTOR
Docket 41
- NONE LISTED -
Debtor(s):
Juan M. Valenzuela Represented By Axel H Richter
Movant(s):
Wells Fargo Bank, N.A. Represented By Merdaud Jafarnia
Gwendolyn C McClain
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 22
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
James Anthony Startz Represented By Kevin T Simon
Movant(s):
The Bank of New York Mellon FKA Represented By
Tyneia Merritt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 20
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 24).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jacqueline Susanne Lawson Represented By Christopher J Langley
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ZB NA dba CALIFORNIA BANK & TRUST
vs DEBTOR
Docket 11
- NONE LISTED -
Debtor(s):
Ousama Wafaa Karawia Represented By Nicholas M Wajda
Joint Debtor(s):
Maggy Deek Karawia Represented By Nicholas M Wajda
Movant(s):
ZB, N.A. d/b/a California Bank & Represented By
Anthony J Napolitano
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 16
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
10:00 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Christopher David Mercado Represented By Richard McAndrew
Joint Debtor(s):
Alma Cornelia Mercado Represented By Richard McAndrew
Movant(s):
Christopher David Mercado Represented By Richard McAndrew Richard McAndrew
Alma Cornelia Mercado Represented By Richard McAndrew
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 16
Grant, subject to the following conditions, and also subject to any opposition at the hearing. Appearances required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis B. Rosales Represented By Lionel E Giron
Movant(s):
Luis B. Rosales Represented By Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 83
Debtor(s):
Ladonna L Flores Represented By
Anthony Obehi Egbase Crystle Jane Lindsey Adaure C Egu
Edith Walters
W. Sloan Youkstetter
Movant(s):
Nationstar Mortgage, LLC. Represented By Bill Taylor Michael Daniels
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 16
Grant in part and continue in part to 6/26/18 at 10:00 a.m. as set forth below. Appearances are not required on 6/19/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any
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future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower"). Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: (a) Jamshid Azaradibi; and (b) Mahnaz Azaradibi.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sunny Kim Pro Se
10:00 AM
Movant(s):
U.S. BANK NATIONAL Represented By Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:18-01068 Los Angeles County Sheriff's Dapartment v. Gandarilla et al
Docket 1
Tentative Ruling for 6/19/18:
Appearances required. This Court has reviewed the parties' joint status report (adv. dkt. 30) and the other filed documents and records in this adversary proceeding, as well as relevant documents in the bankruptcy case.
Background. Plaintiff, the Los Angeles County Sheriff's Department ("Sheriff") has filed its complaint in interpleader against the debtor, her Chapter 13 Trustee ("Trustee"), and Cardlock Fuels Systems, Inc. ("Cardlock"). Sheriff levied on funds held in the debtor's bank account at Wells Fargo Bank, NA and received about $32,775.00 (the "Levied Funds") but the debtor and Cardlock dispute who should receive the funds.
Cardlock asserts that it owns the funds; but the debtor asserts that Cardlock has only a secured claim to the funds and that those funds should be returned to the debtor and Cardlock will continue being paid over time (without interest). Cardlock is listed as a secured creditor in the amount of
$43,066.84 in the debtor's chapter 13 plan (case dkt. 2, p.5), which this Court previously confirmed (case dkt. 19), and in any event the debtor's plan promises to pay unsecured creditors 100% of their claims (without interest). Cardlock's proof of claim (Claim No. 3-1) asserts that it is owed $45,544.66 as of the petition date, based on a judgment for goods sold, which it asserts is secured by a judgment lien. In other words, the debtor proposes to pay Cardlock over 5 years, without interest (regardless whether Cardlock's claim is treated as secured or unsecured under the plan), and Cardlock seeks immediate payment of approximately 3/4 of the total debt using the Levied Funds.
Sheriff apparently has no reason to care about any of this. Sheriff only seeks a judgment that, among other things, would permit the deposit of the Levied Funds with this Court while restraining all of the defendants from
11:00 AM
involving Sheriff any further.
Before Sheriff filed the complaint, the debtor attempted to obtain turnover of the funds by filing a motion for turnover (case dkt. 31). This Court issued an order (dkt. 34, the "Non-Turnover Order") denying that motion for the following reasons (copied from that order):
Facts
Neither party provides any copy of any levying documents, or any declarations to support their allegations. Nevertheless, the following facts appear to be undisputed.
Prepetition, on February 21, 2017, at the request of judgment creditor Cardlock, The Los Angeles County Sheriff's Department ("Sheriff") served a Writ of Execution and notice of levy on Wells Fargo Bank, NA ("Bank") where the debtor held a bank account. On February 28, 2017 the debtor filed her bankruptcy petition.
Postpetition, on March 2, 2017, Bank delivered to Sheriff $32,775 (the "Funds"). See dkt. 31, p.3:1-12 and dkt. 33, pp.1:25-2:8.
Legal authority
Neither party cites any authority for their principal arguments.
The authorities they do cite appear to be mostly the wrong statutes and irrelevant decisions.
The debtor asserts that the Funds are property of the estate under the general principles of 11 U.S.C. 541, without any citation to California law defining when ownership of funds is transferred away from the depositor/debtor. See In re Hernandez, 483 B.R. 713, 720 (9th Cir. BAP 2012) ("Whether a debtor's interest constitutes 'property of the estate' is a federal question to be decided by federal law [but] the nature and extent of the debtor's interest in property must be determined by nonbankruptcy law.") (citations and internal quotation marks omitted, emphasis added).
The debtor next argues that Cardlock and Sheriff should be ordered to return the Funds to the debtor "under 11 U.S.C. [section] 105" (dkt. 31, p.4:6), which is the general authorization for the Bankruptcy Court to issue any order or judgment that is "necessary or appropriate to carry out the provisions of this title." The debtor ignores 11 U.S.C. 542 and 543, which are the specific statutory
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provisions governing turnover to the estate of property of the estate.
Cardlock argues, also without citation, that when the Funds
"were levied" they "ceased being the Debtor's property" - Cardlock does not specify whether the time when the Funds "were levied" means when the writ and notice were served on Bank (prepetition), or when the Funds were delivered by Bank to Sheriff (postpetition). Dkt. 33, p.2:24-25. Cardlock may mean the latter because in the next sentence it states that when the Funds "were delivered from [Bank] to [Sheriff], title to the property was vested in creditor [Cardlock]" (dkt. 33, pp.2:25-3:4) based on a decision from the Seventh Circuit involving escrowed funds. See Fed. Deposit Ins.
Corp. v. Knostman, 966 F.2d 1133, 1142 (7th Cir. 1992). Cardlock does not cite any California law or any decision applying California law, nor any decision involving a levy by a sheriff (as opposed to escrowed funds).
This court declines to perform the parties' research for them.
Nevertheless, this court must determine based on general principles and who has what burden whether to grant or deny the debtor's motion. Accordingly, this court has performed some brief research on the following issues.
The debtor had an interest in the Funds as of the petition date
Although this court's brief research suggests that California law is not entirely clear, it appears that when a bank has not yet turned over funds to the sheriff prepetition, the levying creditor only has a lien not an ownership interest in the funds. See Hernandez, 483
B.R. 713, 721 (under Cal. Code Civ. P. 700.140(a)&(e), creditor obtains execution lien on amounts in deposit account at time of service on financial institution, and that lien terminates when the funds are paid to the levying officer, which implies that the debtor's interest is transferred at the latter time). (The statute was amended after Hernandez was decided, including designating paragraph "(e)" as paragraph "(f)," but the amendments do not appear to be material.)
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Any postpetition termination of the debtor's interest in the Funds is void
Assuming that Cardlock is correct that the transfer from Bank to Sheriff terminates the debtor's interest in the Funds under California law, Cardlock has not suggested any reason why that transfer would not have violated the automatic stay of 11 U.S.C.
362(a). Therefore any such transfer apparently is void ab initio. See, e.g., In re Gruntz, 202 F.3d 1074 (9th Cir. 2000), and In re Schwartz, 954 F.2d 569 (9th Cir. 1992). (The debtor asserts, dkt. 31, p.3, n.1, that because the transfer from Bank to Sheriff occurred postpetition "the Debtor most likely has grounds to avoid the transfer of the Funds pursuant to 11 U.S.C. 549." This court expresses no opinion on that issue.)
The debtor has neither sought, nor established a basis for, turnover
The debtor cannot use 11 U.S.C. 105 to evade or enlarge the specific statutory provisions that govern turnover: 11 U.S.C. 542 and 543. So one of those latter statutes governs - this court does not decide which one (i.e., whether Bank and/or Sheriff qualify as a "custodian" under 11 U.S.C. 101(11) and 543), because for present purposes the issues are the same under each section.
This court also assumes without deciding that the debtor would have standing to seek turnover under 11 U.S.C. 542 or 543 (or, for that matter, standing to seek avoidance under 11 U.S.C. 544-549 and recovery under 550, although as Cardlock points out any such avoidance actions presumably would require an adversary proceeding under Rule 7001, Fed. R. Bankr. P.). Compare In re Cohen, 305 B.R. 886, 891-900 (9th Cir. BAP 2004) (chapter 13 debtor has standing to bring avoidance actions).
So far so good for the debtor's position. But it is not enough for the debtor to show that someone is in possession of property in which the bankruptcy estate has an interest. The debtor also must establish that any persons holding an interest in that property, such as Cardlock, will have their interests adequately protected. See 11
U.S.C. 363(e) (court "shall" provide adequate protection of person's interest in property proposed to be used, upon request); 11 U.S.C.
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542(a) (turnover only applies to property that trustee may "use, sell, or lease" or that debtor may exempt, i.e., which is subject to section 363(e)); 11 U.S.C. 543(c)(1) (court shall "protect all entities" to which custodian of property has become obligated).
The debtor has not shown that simply turning over the Funds to the debtor would adequately protect Cardlock, or for that matter that such turnover would be an appropriate use of property of the estate. In sum, the debtor has neither requested relief under the applicable statutory provisions, nor established a basis for such relief.
This court expresses no opinion regarding the remaining arguments raised by Cardlock - e.g., that the debtor lacks "clean hands," or that this case should be converted to chapter 7. It is unnecessary to reach the former issue, and the latter has not been properly presented (in the form of a motion to convert).
Current motions. Returning to Sheriff's interpleader complaint, the following motions are on calendar today.
Motion for default judgment against Trustee (adv. dkt. 19). The Clerk of this Court has entered a default against Trustee; Trustee has not responded to Sheriff's motion for a default judgment against her; and the tentative ruling is to grant that motion and enter a judgment substantially in the form attached as Exhibit B to Sheriff's motion. If that tentative ruling is adopted, Sheriff is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Sheriff's motion for a default judgment against Cardlock (adv. dkt. 17), and Cardlock's opposition (adv. dkt. 28) and motion to set aside entry of the Clerk's default and/or any default judgment (adv. dkt. 27). The tentative ruling is to set aside the Clerk's default against Cardlock, for the reasons stated in its motion. That moots Sheriff's motion for a default judgment. If that tentative ruling is adopted, Cardlock is directed to lodge proposed orders on both motions via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
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Status conference in this adversary proceeding.
Deposit funds in registry. The parties are directed to address why there is any reason not to grant a judgment or order authorizing and directing deposit of the Levied Funds into the registry of this Court, while restraining all of the defendants from involving Sheriff any further (in language substantially in the form proposed for the judgment against Trustee), and reserving any other issues (such as any claim by Sheriff for attorney fees). Although there is no pending motion for such a judgment or order, the tentative ruling is that if all non-defaulting parties agree to such relief then it would be appropriate to grant such relief. Among other things, that might reduce the Sheriff's ongoing attorney fees, to the benefit of all parties.
The tentative ruling is that if all parties agree to the foregoing then this Court should treat that as an oral motion for entry of Local Form F7067- 1.1.ORDER.REGISTRY.FUND entitled "Order on Motion: (A) To Deposit Funds Into the Court's Registry, or (B) To Disburse Funds Out of The Court's Registry." If this tentative ruling is adopted, Sheriff is directed to lodge that proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Who is entitled to the Levied Funds. The debtor, Cardlock and Sheriff are directed to address the following issues.
If debtor seeks recovery under 11 U.S.C. 522(h). The debtor potentially could seek to recover property that the debtor could exempt, pursuant to section 522(h). But as Cardlock points out, the debtor's bankruptcy Schedule C does not purport to exempt the Levied Funds (see case dkt. 1, at PDF p.17). The debtor has not amended those exemptions and perhaps cannot (e.g., it is not clear that the debtor could do so without giving up other exemptions that the debtor might not wish to give up).
If debtor seeks recovery of the Levied Funds as representative of the estate. As pointed out in the Non-Turnover Order, there is some authority that even if there is no applicable exemption the debtor has standing to seek avoidance of the levy on behalf of the estate (e.g., under 11
U.S.C. 549). But that would require commencement of an adversary proceeding.
In addition, Cardlock has pointed out that the debtor did not disclose
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the existence of these funds in her bankruptcy schedules, and based on that fact Cardlock's proposed Answer (attached to its motion to avoid the Clerk's default) raises various defenses to turning over the funds to the debtor. In addition, if the debtor is not able to exempt the funds then those funds presumably would have to be used for the benefit of the estate and creditors, which probably means that any recovery of the Levied Funds would have to be followed by a distribution of the Levied Funds either (i) for truly necessary expenses (but the debtor has not suggested any such expenses) or else (ii) back to creditors - i.e., the money might essentially go in a circle, from Cardlock/Sheriff to this Court's registry, and then to the debtor for distribution to creditors, including Cardlock.
In sum, there appears to be a substantial risk that the expense and delay for both the debtor and Cardlock will far exceed any potential net benefit to anyone. Therefore the parties should be prepared to address why they cannot agree to some arrangement whereby some portion of the Levied Funds would be paid to Sheriff, to the extent, if any, that Sheriff has a claim for attorney fees or other costs or expenses under applicable law, and then the remainder would be divided between Cardlock and the debtor (either for re-distribution to other creditors, or for the debtor's truly necessary expenses).
None of this has been briefed, and this Court emphasizes that all of the foregoing is only one possible resolution. This Court's hope is that the foregoing may suggest a path toward consensual resolution.
If the parties are unable to reach a consensual resolution. If some or all issues remain unresolved, the parties are directed to address the following issues.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP
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2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. If the parties cannot reach a consensual resolution without the assistance of a mediator, is there any reason why this Court should not order mandatory mediation? Again, this Court's concern is that the expenses to all parties of litigation far exceed the net benefit any party is likely to gain.
Deadlines: This adversary proceeding has been pending since 2/28/17. Even if the parties do not reach a consensual resolution, it appears that there will be very little left to determine in this adversary proceeding - perhaps only whether Sheriff is entitled to attorney fees. The parties are directed to address what issues remain, and whether discovery is needed on those issues or if, instead, they can be resolved through a motion for summary judgment or similar mechanism. Because that seems likely, the tentative ruling is not to set any discovery cutoff or other deadlines at this time, but instead to set a continued status conference for 7/17/18 at 11:00
a.m. with a brief status report due 7/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 5/22/18:
Continue to 6/19/18 at 11:00 a.m. to be concurrent with the hearing on the motion of Cardlock Fuels System, Inc. ("Cardlock") to set aside the Clerk's entry of default against it. Appearances are not required on 5/22/18.
Analysis. It appears that the funds levied by the Los Angeles County Sheriff's
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Department ("Sheriff") might properly belong to the debtor, or to Cardlock (if it can obtain relief from default), or to the bankruptcy estate (given the debtor's alleged nondisclosure in her bankruptcy papers of her claim to the funds at issue). See adv. dkt. 27, Ex.A, at pp.3:11-4:14 (Cardlock's affirmative defenses, asserting that either it or the debtor's bankruptcy estate owns the funds, not the debtor). Until it is determined whether or not the Clerk's default against Cardlock will be vacated, it is premature to address the motion for a default judgment against Cardlock. In addition, given the potential interests of the bankruptcy estate in the funds, and the possible lack of anyone to represent the estate if a default judgment were to be entered against Cardlock, it is premature to enter a default judgment against the other possible representative of the estate - the Chapter 13 Trustee.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Laura Elena Gandarilla Represented By Leonard Pena
Defendant(s):
Laura Elena Gandarilla Pro Se
Laura Dockery Pro Se
Cardlock Fuels System, Inc. Pro Se
Plaintiff(s):
Los Angeles County Sheriff's Represented By
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Trustee(s):
Jacquelyn H Choi
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:18-01068 Los Angeles County Sheriff's Dapartment v. Gandarilla et al
fr. 5/22/18
Docket 19
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in this adversary proceeding (calendar no. 1, 6/19/18 at 11:00 a.m.).
Revised Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference in this adversary proceeding (calendar no. 6, 5/22/18 at 11:00 a.m.).
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Laura Elena Gandarilla Represented By Leonard Pena
Defendant(s):
Laura Elena Gandarilla Represented By Leonard Pena
Kathy A Dockery Pro Se
Cardlock Fuels System, Inc. Pro Se
Plaintiff(s):
Los Angeles County Sheriff's Represented By Jacquelyn H Choi
11:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:18-01068 Los Angeles County Sheriff's Dapartment v. Gandarilla et al
fr. 5/22/18
Docket 17
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in this adversary proceeding (calendar no. 1, 6/19/18 at 11:00 a.m.).
Revised Tentative Ruling for 5/22/18:
Please see the tentative ruling for the status conference in this adversary proceeding (calendar no. 6, 5/22/18 at 11:00 a.m.).
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Laura Elena Gandarilla Represented By Leonard Pena
Defendant(s):
Laura Elena Gandarilla Represented By Leonard Pena
Kathy A Dockery Pro Se
Cardlock Fuels System, Inc. Pro Se
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Plaintiff(s):
Los Angeles County Sheriff's Represented By Jacquelyn H Choi
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:18-01068 Los Angeles County Sheriff's Dapartment v. Gandarilla et al
Docket 27
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in this adversary proceeding (calendar no. 1, 6/19/18 at 11:00 a.m.).
Debtor(s):
Laura Elena Gandarilla Represented By Leonard Pena
Defendant(s):
Laura Elena Gandarilla Represented By Leonard Pena
Kathy A Dockery Pro Se
Cardlock Fuels System, Inc. Represented By Thomas J Tedesco
Plaintiff(s):
Los Angeles County Sheriff's Represented By Jacquelyn H Choi
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
Docket 137
Grant, with a reduction of $200 because the fee application's description of the services was vague and not in compliance with the local rules and guidelines, making those services appear to be clerical, and only in the reply was a sufficient explanation provided. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Supplemental Declaration in Support of Fee Application (dkt. 147), opposition by the U.S. Trustee (dkt. 146), reply (dkt. 148).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
2:00 PM
Fargo Trucking Logistic Co LLC, Express FTC, Inc., Hancore Brokerage Services Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019
fr. 02/13/18, 03/06/18, 5/1/18
Docket 36
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
fr. 5/1/18
Docket 122
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Inc., Hancore Brokerage Services Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting; and (2) Approving Form of Notice to Be Provided to Creditors and Parties- in-Interest in Connection with the Settlement
fr. 5/1/18
Docket 149
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Docket 1
Tentative Ruling for 6/19/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to provide an update on the status of their negotiations, and whether all matters on calendar for today in the Sakurai and Checkmate cases (including the adversary proceeding against Fower and Radiology Solutions) should be continued to 8/7/18 at 2:00 pm., with a brief status report due 7/24/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 186, 187, 188). At the status conference this Court will address changes that need to be made to the amended disclosure statement and amended plan prior to service on creditors.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
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Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 186, 187): At the status conference this Court will discuss
deadlines for filing an amended disclosure statement and plan, and whether to set hearing(s) on final approval of the disclosure statement and whether to approve the plan.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required by counsel for the debtors but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Joint Plan/ Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 176, 177, 178). At the status conference this Court will address numerous issues with these documents.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Joint Plan/Disclosure Statement* (dkt. 176, 177): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status
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report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 48). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Fresco Adversary Proceeding (adv. case no. 2:17-ap-01558-NB), including motion to remand (adv. dkt. 8). The tentative ruling is that this matter will be mooted, assuming that this Court approves the parties' proposed settlement, and therefore this matter should go off calendar. The parties are reminded to file appropriate papers to have this matter dismissed once the settlement is fully implemented.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report
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required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
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Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference,
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including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB,
dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
2:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
2:00 PM
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
2:00 PM
appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent,
2:00 PM
then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
2:00 PM
Docket 1
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/19/18 at 2:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement (dkt. 175, 176).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 177), appear to be identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 186, 187, 188. Counsel are directed to alert this Court and the parties at the hearing if they are not.
For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/12/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
2:00 PM
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 175, 176): At the status conference this Court will discuss appropriate deadlines.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required.
Current issues.
Joint Plan/Joint Disclosure Statement (dkt. 165, 166).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 167). are substantially identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 176, 177, 178. For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 5/8/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Joint Plan/Disclosure Statement* (dkt. 166, 167): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status
2:00 PM
report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 57). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
2:00 PM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
2:00 PM
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
2:00 PM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
2:00 PM
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
2:00 PM
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing
2:00 PM
date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
fr. 4/9/18, 4/10/18, 5/8/18, 6/12/18
Docket 10
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 7, 6/19/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 7, 6/12/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 8, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 2:00 p.m. for the reasons stated on the record on 4/9/18. Appearances are not required on 4/10/18.
Tentative Ruling for 4/9/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether this court should grant Checkmate's request for an expedited hearing and issue an order granting a temporary restraining order and order the immediate turnover of the Collateral pursuant to Checkmate's claim and delivery action.
2:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Pro Se
George Tyler Fower Pro Se Siemens Medical Solutions USA Inc Pro Se
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
(2) Claim and Delivery; (3) Conversion; (4) Breach of Guaranty;
(5) Fraud; (6) Preliminary Injunction; and (7) Constructive Trust fr. 5/8/18, 6/12/18
Docket 1
Tentative Ruling for 6/19/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to provide an update on the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current Issues.
Joint Status Report and Notice of Continuances. This Court's 5/8/18 tentative ruling (see below) was not opposed, so it became this Court's actual ruling.
This Court directed (i) Checkmate to file and serve a notice of continuances attaching and incorporating by reference the deadlines in that tentative ruling by 5/7/18, and (ii) the parties to file a brief joint status report by 5/29/18. As of the preparation of this tentative ruling, none of the parties have complied. The parties are cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
2:00 PM
Motion for TRO & Claim and Delivery (adv. dkt. 10).
Plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") has filed a stipulation (adv. dkt. 30) with defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") for turnover of equipment. But Checkmate has not provided any evidence that it has relief from the automatic stay and consent of the Chapter 7 Trustee in the RS and Fower bankruptcy cases for such turnover (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA). The tentative ruling is to set a deadline of 6/19/18 for Checkmate to file a declaration attaching evidence sufficient to establish those things, and lodge a revised proposed order to approve the stipulation.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time. Continue to 7/17/18 at 2:00 p.m., brief joint status report due 7/3/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
The tentative ruling is to continue all pending matters in this adversary proceeding to 6/12/18 at 2:00 p.m. for the reason stated below, with a brief joint status report due 5/29/18, and with a deadline of 5/7/18 for the plaintiff to file and serve a notice of continuances attaching and incorporating by reference the deadlines in this tentative ruling (assuming that this Court is not persuaded to depart from this tentative ruling). Appearances are not required on 5/8/18.
Current Issues. This Court has reviewed the parties' status reports (adv. dkt. 24 & 26) and the other filed documents and records in this adversary proceeding.
Motion for TRO & Claim and Delivery (adv. dkt. 10). At the 4/9/18
2:00 PM
hearing on this motion, counsel for plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") apprised this Court of the bankruptcy filings of defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA) and requested a continuance of this hearing to allow time to obtain orders granting relief from stay with annulment. In the Joint status report (adv. dkt. 24), Checkmate states that the hearings on the relief from stay motions are scheduled for 5/15/18.
Accordingly, the tentative ruling is to continue this motion to the date and time set forth at the start of this tentative ruling.
Siemens Motion to Dismiss (adv. dkt. 27, the "MTD"). Defendant Siemens Medical Solutions USA, Inc. ("Siemens") has properly self- calendared its MTD for 6/12/18 at 11:00 a.m. Siemens anticipates that it may be voluntarily dismissed by plaintiff (see adv. dkt. 24), but if that does not occur then this Court anticipates that the MTD may take 15 minutes or more to hear. This Court's practice is that matters anticipated to take 15 minutes or more are heard on the 2:00 p.m. calendar (not available for self-calendaring, except by permission of this Court). Therefore the tentative ruling is to re- calendar the MTD from 11:00 a.m. to 2:00 p.m., which is concurrent with the other matters in this adversary proceeding that are on today's calendar.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Defendant(s):
Radiology Solutions Corp. Pro Se
George Tyler Fower Pro Se Siemens Medical Solutions USA Inc Pro Se
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
10:00 AM
Roman Catholic Archbishop of Los Angeles vs
Hollister
fr. 4/17/18, 5/3/18, 5/7/18, 6/12/18
Docket 68
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Attorney at Law as Special Counsel fr. 6/12/18
Docket 103
Tentative Ruling for 6/22/18:
Grant the motion (dkt. 305) to expand Mr. Insul's employment (which previously has been authorized) to include loan or financing arrangements, subject to the following provisos. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Provisos: (1) As a reminder, any attempt to by the debtor to do anything indirectly through any business in which she asserts any interest (e.g., to obtain financing through any such entity) is a transaction out of the ordinary course of the debtor's own business and financial affairs that must be disclosed in advance and approved under 11 U.S.C. 363(b). Bankruptcy counsel for the debtor (Mr. Tilem) is directed to remind both the debtor and Mr. Insul of this in writing.
As a further reminder, the debtor is acting as a debtor in possession with the fiduciary duties of a trustee for the benefit of creditors, and any work by Mr. Insul must reflect those fiduciary duties. Mr. Tilem is directed to remind both the debtor and Mr. Insul of those fiduciary duties in writing.
For the avoidance of doubt, payment of any fees or expenses of Mr. Insul related to the debtor - including any business in which she asserts any interest - must be authorized by this Court. Mr. Tilem is directed to remind both the debtor and Mr. Insul of this in writing.
Mr. Tilem is directed to file and serve a declaration confirming that he has provided the foregoing written reminders to the debtor and Mr. Insul no later than 6/26/18.
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Docket 308
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
This matter will be heard on 6/12/18 at 3:00 p.m., to be concurrent with the other matters on for hearing in this case. Appearances required at that time (see Order, dkt. 310).
The tentative ruling is to grant extension of the exclusivity period under 11
U.S.C. section 1121, up to and including 11/15/18, subject to any opposition at the hearing.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
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Docket 5
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
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fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18
Docket 1
Tentative Ruling for 6/22/18:
Appearances required.
Current issues.
Urbanlime/Haro employment (dkt. 93, 253), Bridge Tavern (Villain's) Reopening Motion (dkt. 214, previously granted, dkt. 339, but rescheduled per dkt.369 para. 4.5), Sale Motion (dkt. 112, temporarily denied, dkt. 369, 385) and Lease Assignment Motion (dkt. 187, re-set for hearing, dkt. 388). The parties should be prepared to address the issues set forth in this Court's orders (dkt. 369, 378, 385, 388) setting this hearing.
Motion to extend exclusivity (dkt. 308, 312, 333, 348). The tentative ruling is to preserve the status quo by:
prohibiting the estate from incurring any fees or expenses relative to any contemplated plan between time this tentative ruling is posted and the conclusion of the hearing on the motion to appoint a trustee (dkt. 332, the "Trustee Motion"), currently scheduled for 7/10/18 at 2:00 p.m;
if the Trustee Motion is denied, then extending exclusivity through at least 8/14/18 (any further extension will be addressed at the hearing on 7/10/18 at 2:00 p.m.), so that Mr. Tilem will have the time he has stated he would need to draft a plan (approximately 30 days); and
if the Trustee motion is granted, then terminate exclusivity. (c) Cash collateral motion (dkt. 5, 14, 15, 29, 74, 151, 152, 163, 164,
167, 168, 171, 172, 176, 185, 244). The tentative ruling is to continue this matter to 7/10/18 at 2:00 p.m., and meanwhile authorize the continued use of cash collateral through the conclusion of that continued hearing.
(d) Relief from stay motion (dkt. 68, 79, 141, 147, 154, 162, 222 section v., 270, 312). The tentative ruling is to continue this matter to 7/10/18 at 2:00 p.m.
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Expansion of Insul employment (dkt. 305). Please see calendar no. 2 (6/22/18 at 10:00 a.m.).
Hearings on 7/10/18. Some matters in this case have been self- calendared for 7/10/18 at 1:00 p.m. The tentative ruling is that all matters set for 7/10/18 in this case will be heard at 2:00 p.m.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 7/10/18 at 2:00 p.m., status report due 7/5/18 at noon.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
This court anticipates posting a tentative ruling at a later time. [Note: no further tentative ruling was posted.]
Tentative Ruling for 5/7/18:
[See Memorialization of Tentative Rulings for 5/7/18 (dkt. 234, 236, 238, 239)]
Tentative Ruling for 5/3/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The only issue this Court intends to address is a continued hearing date in view of the last-minute papers that were filed, to fit the parties' and this Court's own needs.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear.
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash flow and cash collateral motion (dkt. 5, 14, 15, 29). This Court's written order (dkt. 29) erroneously lists the continued hearing as 3/20/18 instead of 4/17/18 at 2:00 p.m., as orally ordered at the hearing on 3/9/18. Nevertheless, it is appropriate in connection with this Status Conference to address the debtor's current and projected cash flow and related issues.
This Court was not persuaded at the hearing on 3/9/18 that the debtor can generate positive cash flow. The debtor is directed to provide a brief update on any plans to generate positive cash flow from her various businesses and properties. It is also appropriate for other parties in interest to address whether there has been adequate disclosure to date regarding the finances of those businesses and properties. The debtor is cautioned that the declaration due on 3/27/18 must provide comprehensive disclosures regarding those businesses and properties: if the debtor cannot show reasonable prospects for positive cash flow within a reasonable time then this Court might have to grant relief from the automatic stay (upon a proper motion), or convert or dismiss this bankruptcy case, at least if the debtor does not abandon unprofitable businesses or properties.
Employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of
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funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt. 9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure), including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why were resumes for associates, paralegals, and persons who are "of counsel" to the firm not included? (ii) Has counsel waived or amended the provisions in the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined in the parties' papers)?
Proposed special counsel: the Snyder firm (dkt. 36, 37). (i) What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
(ii) What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 4/17/18 at 2:00 p.m., status report due 4/3/18. (see order, dkt. 30).
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/9/18:
[no tentative ruling was posted for this hearing]
Debtor(s):
Dana Hollister Represented By David A Tilem
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Docket 93
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
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Docket 112
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
2D COPY OF DRAFT TENTATIVE RULING (AS OF early 5/7/18) (BACKUP).
Tentative Ruling for 5/7/18:
Appearances required.
Current issues.
Urgency. The matters set forth below are all colloquially known as "first day," "emergency," or urgent motions that typically would have been resolved by now, except that the facts could not be determined without (expedited) discovery. See dkt. 175 (discovery order). In addition, the motion for relief from the automatic stay is generally subject to a 30-day limit (11
U.S.C. 362(e)), although that has been extended in this case. See LBR 4001-1(c)(3).
Cash collateral & budget motions (dkt. 5, 14, 15, 29, 74, 151, 152, 163, 164, 167-68, 171, 176; and 96, 146, 161).
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Legal standards, generally. A chapter 11 debtor who is in
possession of the bankruptcy estate (11 U.S.C. 1101(1)) has the duties of a trustee for the benefit of creditors (11 U.S.C. 1107), including a fiduciary duty to protect and conserve property of the estate. See, e.g., In re McConville, 110 F.3d 47, 50 (9th Cir. 1997). Just like a trustee, the debtor may use, sell, or lease property of the bankruptcy estate in the "ordinary course of business" (11 U.S.C. 363(c)(1)), but may not use any property "other than in the ordinary course of business" without authorization from the Bankruptcy Court after notice and a hearing. 11 U.S.C. 363(b)(1).
In addition, if property at issue is the "cash collateral" of any entity (as defined in 11 U.S.C. 363(a)) then the debtor may not use it at all without prior authorization (or the consent of the entities with an interest in that cash collateral). 11 U.S.C. 363(c)(2).
Any entities with an interest in property of the estate may request that the court require the debtor provide "adequate protection" to them. 11 U.S.C. 363(e). The Bankrupcy Court "shall" condition or prohibit any proposed use, sale, or lease of property to the extent necessary to provide such adequate protection.
Adequate protection may include periodic cash payments, replacement liens, or other things. 11 U.S.C. 361. But those things must protect the economic interests of the entities with an interest in property of the estate. Id.
Legal standards, as applied to individual debtors. There is not a great deal of authority about how to apply the foregoing standards to individual debtors. First, if the ordinary course of "business" were read to mean only commercial business then theoretically a debtor essentially would not be authorized to spend anything without prior court authorization. See In re Goldstein, 383 B.R. 486 (Bankr. C.D. Cal. 2007).
But ordinary living expenses are implicitly part of an individual debtor's everyday "business." Thus, the debtor is automatically authorized by section 363(b) to use property of the estate (except cash collateral) without court approval for such basics such as food, shelter, and ordinary and necessary expenses such as personal care products and some entertainment. See In re Seely, 492 B.R. 284, 289-91 (Bankr. C.D. Cal. 2013).
Second, just like commercial business transactions, individual debtors' transactions probably are subject to both (A) a "veritcal" or "creditors' expectation" test and (B) a "horizontal" test. See Seely, 492 B.R. 284, 289-91 & n.7 (applying In re Dant & Russell, Inc., 853 F.2d 700, 704-05 (9th Cir.
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1988)).
The "vertical" or "creditors' expectation" test asks whether the transaction at issue subjects a hypothetical creditor to economic risks of a nature different from those the creditor accepted when deciding to extend credit. This compares the debtor's proposed postpetition transaction with the debtor's prepetition background to see if there is a history of similar transactions. Dant & Russell, 853 F.2d 700, 704-05. The "horizontal" test asks whether persons who are similarly situated to the debtor ordinarily would engage in such transactions. Id.
Debtors sometimes take an overly aggressive view of what is the "ordinary course" of their business. Therefore a budget motion is required under the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov). Compare Seely, 492 B.R. 284, n.5 & accompanying text (Bluebond, J., declining to require debtors to file budget motions, but cautioning that it might be advisable to seek prior authorization for any budget).
Once it is determined that section 363(b)(1) applies - i.e., that court authorization is required (beyond any authorization required for use of cash collateral) - it is unclear what standards the Bankruptcy Court should apply in deciding whether or not to authorize a proposed expenditure. See In re Villalobos, 2011 WL 4485793 (9th Cir. BAP 8/19/11) (noting uncertainty, and remanding on that issue). The parties have not briefed that issue.
The tentative ruling is that the debtor bears the burden to establish that the proposed expenditure is in the best interests of the estate. See Goldstein, 383 B.R. 496, 502. For example, in a situation involving divorcing debtors, it was held that each debtor had to show that employment of special counsel to handle not only the property division aspect of the divorce but also the dissolution aspect was "for the benefit of the estate and not for the debtor's personal benefit." Id. But because dissolution of the marriage was essential to disentangle the debtors' domestic lives, and move forward with the bankruptcy case, it was held that it was appropriate to authorize employment of counsel to handle both dissolution and property division.
Note that the foregoing test under section 363(b)(1) is in addition to, not in place of, the requirement for adequate protection under section 363(e). Therefore the relevant questions are as follows. First, does the proposed budget of the debtor, Ms. Hollister, use cash in which Bird Nest or RCALA have an interest and, if so, has the debtor met her burden to show that those
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interests are adequately protected? Second, does the proposed budget include transactions that are out of the ordinary course and, if so, has the debtor met her burden to establish that the proposed expenditures are in the best interests of the estate?
... [BACKGROUND RE CASH FLOW & ASSETS/APPRAISALS]
[CASH COLLATERAL]
Insurance. The debtor has provided evidence that the insurance policy premiums of $1,065/mo. are "ordinary" under the vertical test. because she apparently has been paying them for several years (she declares that she purchased the policy in 2012). See dkt. 161, p.4, para. 3. But the debtor provides no argument or evidence that the expense of a $3 million insurance policy is "ordinary" under the horizontal test. Therefore, court approval is required under section 362(b)(1), and the debtor bears the burden to show that the proposed expenditure is in the best interests of the estate.
In addition, the debtor must show that paying for $3 million of coverage is consistent with providing adequate protection to Bird Nest and RCALA.
Car payments. The debtor pays $ /mo. for her vehicle, consisting of both payments on the car loan balance of approximately
$68,000 and "what appears to be 3 years of pre-paid maintenance." Dkt. 161, p.3:5. The debtor states that she is not opposed to seeking to refinance this debt, when she has more time. Dkt. 161, p.5, para. 11.
...
Relief from stay motion (dkt. ).
Motion to authorize transaction out of ordinary course re Bridge Tavern, LLC ("Bridge") (dkt. 112, 140, 150, 156) and motion to employ Urbanlime Real Estate (Leslie Haro) ("Urbanlime") (dkt. 93, 121, 133, 134, 142, 157, 177, 179). No written opposition has been filed to the motion to liquidate and wind up Bridge (dkt. 112, the "Bridge Motion"). It is also supported by the Committee (dkt. 140). The motion to employ Urbanlime (dkt. 93, the "Urbanlime Motion") is opposed by Pierre Casanova, a co-owner of LLCs related to the Cliff's Edge restaurant. It is supported, however, by the Committee (dkt. 142).
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Several aspects of these related motions are troubling. The debtor
apparently has disregarded her duties as a trustee for the benefit of creditors by: (i) entering into a commitment to transfer the Bridge leasehold without the landlord's consent, (ii) reopening the Bridge business without notice or authorization by this Court, (iii) hiring a professional, out of the ordinary course of her business, to retroactively create books and records, without any notice or assurance that the professional is disinterested and qualified, (iv) marketing businesses for sale before having reliable books and records for those businesses, thereby possibly chilling the current bidding and any future sales, (v) hiring Urbanlime as a broker without without safeguards required by this Court, and (vi) marketing and entering into an agreement to sell the Cliff's Edge-related LLCs without proper notice to, let alone authorization by, the co- owner of those LLCs.
Landlord.
Attached to the Bridge Motion is an agreement to sell the business for
$495,000 (the "Bridge Agreement"), and although that agreement is expressly contingent on this Court's approval (dkt. 112, Ex.1, para. 24) it does not appear (from this Court's brief review) to include any contingency for approval by the landlord. After the Bridge Motion was filed, the debtor and landlord Odyssesus Investment Group, LLC ("Bridge Landlord") stipulated (dkt. 150) to continue the hearing - presumably to address whether the landlord will consent to the assignment of the leasehold.
Is this Court misinterpreting the record? Regardless, why did the debtor market the Bridge assets, enter into the Bridge Agreement, and file the Bridge Motion without obtaining the Bridge Landlord's consent, or even disclosing in the Bridge Motion that such consent was needed? What is the status of the debtor's negotiations with Bridge Landlord? Have those negotiations resulted in any new terms that would make the proposed Bridge Agreement less advantageous for the estate and/or require disclosure to creditors and an opportunity to object by amending and re-noticing the Bridge Motion? The tentative ruling is to set a deadline of 5/14/18 for the debtor to file and serve her declaration addressing those things.
Reopening the business. The debtor's reply in support of the motion to hire Urbanlime states (dkt. 157, p.3:4-6) that the Bridge business ("Villain's Tavern") previously was not operating but as of April 20, 2018 it has been reopened. Again, this revelation is troubling.
Has reopening the business cost the bankruptcy estate money? Is the
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debtor guaranteed to recoup that money?
This Court recognizes that, even if it involved some expense, reopening the business might be the best way to maximize the Bridge assets' value, or could be a good idea for other reasons. But that is not the point.
The point is that, just as the debtor acknowledges that causing Bridge to sell its business is a transaction out of the ordinary course, so is causing Bridge to reopen its closed business. In other words, the debtor has used estate assets "other than in the ordinary course of business," requiring approval under 11 U.S.C. 363(b) (emphasis added). Why did the debtor act without Court authorization?
This Court recognizes that reopening the business might not cost the bankruptcy estate anything if the business is being funded and operated by the proposed new owner. But that in itself would be a transaction out of the ordinary course.
All of the foregoing raises the question what is actually meant by the debtor's delphic phrase that Villain's Tavern "has been reopened and is now operating." Dkt. 157, p.3:6. The tentative ruling is to set a deadline of 5/10/18 for the debtor to file and serve her declaration addressing those things.
"Controller" Jeffrey Garrison. The same reply in support of the Bridge Motion states (dkt. 157, p.2:3-8) that the debtor hired a "controller" after the petition date. The debtor apparently had not used a controller in the ordinary course of her businesses prepetition, because she admits (dkt. 157, p.2:9-17) that "in most cases" her "books and records were either non- existent, or rudimentary" and the controller is in the process of retroactively creating books and records from "source materials." Id.
It is true that usually a debtor engaged in business can hire regular employees, who may include controllers, bookkeepers, and the like, without having to seek authorization under 11 U.S.C. 327 or 363(b)(1). Likewise, if a debtor has used a non-employee tax accountant prepetition, it may be permissible to continue using that accountant postpetition without court authorization if the work is not central to the bankruptcy process but instead is part of the "ordinary course" operations of the debtor.
But this case does not appear to be anything like those situations. Mr. Garrison is a certified public accountant who was hired for his present tasks postpetition, and he does not appear to be an officer or employee of one or more of the debtor's businesses or the debtor herself. See dkt. 157, pp.
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13-14 (Garrison decl.). Rather, he appears to be an accountant who is retroactively creating books and records for use in this bankruptcy case, and who fits the classic definition of a professional whose employment must be authorized under 11 U.S.C. 327. See, e.g., In re That’s Entertainment Mktg. Group, Inc., 168 B.R. 226, 230 (N.D. Cal. 1994) (professional person is one who plays "an intimate role in the reorganization of a debtor's estate") (citations omitted).
The fact that Mr. Garrison's employment was not authorized is particularly troubling because none of the usual safeguards have been applied to assure that his employment is consistent with the best interests of the estate. Such safeguards are especially important when the person at issue has been hired to go through the debtor's "source documents" and retroactively create books and records. There is too much opportunity for whitewashing or other mischief when charged with such an important task.
Normal safeguards would include disclosing any "connections" with all parties in interest, providing evidence of qualifications, and proving that the proposed professional is disinterested and does not hold or represent any interest adverse to the bankruptcy estate. See 11 U.S.C. 101(14), 327(a) and Rule 2014 (Fed. R. Bankr. P.). Mr. Garrison's declaration does none of these things, except to declare that he has done "some work related to the Debtor's sole proprietorship businesses ...." Dkt. 157, p.13, para.5.
The tentative ruling is to set a deadline of 5/14/18 for the debtor and Mr. Garrison to file and serve declarations stating under oath all "connections" within the scope of Rule 2014, together with a motion for authority to employ Mr. Garrison (both retroactively and prospectively) under both section 327(a) and 363(b), to the extent that each may be applicable, and set that motion for hearing concurrent with the continued status conference.
Chilling the market? As noted above, the debtor concedes that most of the books and records with respect to her businesses are "either non-existent, or rudimentary," and her newly-hired controller is still in the process of attempting to construct books and records (dkt. 157, p.2:9-17).
Yet the debtor states that "Ms. Haro [Urbanlime] has been informally shopping the three Cliff's entities for months" (dkt. 157, p.4:5-6) and has been "test[ing] the market" for her businesses (dkt. 157, p.5:18-24).
Normally, in this Court's experience, a buyer of a business requires reliable historical books and records, or else will impose a steep discount. Has the debtor used appropriate business judgment in marketing the
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businesses already? Has the market been chilled, and the estate harmed?
The tentative ruling is to set a deadline of 5/14/18 for the debtor to file and serve her declaration addressing those things.
Employment of Urbanlime. The debtor has filed a separate motion to employ Urbanlime, not just for Bridge but for GJV, Inc. and the Cliff's Edge-related LLCs as well (dkt. 93, the "Urbanlime Motion"). That motion does not cite any section of the Bankruptcy Code, so it is unclear if Urbanlime's retention is sought to be approved under 11 U.S.C. 363(b) (as part of the use of the debtor's interest in Bridge out of the ordinary course) or under 11 U.S.C. 327 and/or 328 (retention of professionals).
The Committee supports that application (dkt. 142). That application nevertheless implicates the following issues.
First, this Court notes that Pierre Casanova, who is a 50% member with the debtor of the Cliff's Edge-related LLCs, has objected to Urbanlime's retention, but he takes no position with respect to Urbanlime's services involving Bridge or GJV, Inc. provided that the other LLCs' funds are not used to compensate Urbanlime. See dkt. 133, p.5, n.1. The tentative ruling is that any compensation to Urbanlime must come solely from proceeds of the transaction at issue, not from any other source.
Second, the Bridge Motion asserts that the application to hire Urbanlime "is probably not necessary" (dkt. 112, p.5:2), at least with respect to Bridge, because the sale, allegedly, is by the business not by the debtor herself. That assertion is not adequately supported.
For one thing, it is unclear whether the business purchase agreement (dkt. 112, Ex.1) is signed by the debtor in her personal capacity as well as on behalf of the business. Typed below her signature is "Dana Hollister/Bridge Tavern LLC." Dkt. 112, Ex.1, para. 46.
For another thing, the listing agreement with Urbanlime is also ambiguous. Its signature line (dkt. 93, Ex. C, at p.27) reads, "Clients: Dana Hollister, Pierre Casanova," which suggests that they are hiring Urbanline in their individual capacities. It is true that the listing agreement is signed solely by the debtor (not Mr. Casanova), and she uses the title "President" - i.e., perhaps she is purporting to sign as the managing member (colloquially, "President") of the LLCs? But Mr. Casanova objects that the debtor had no authority to sign the listing agreement, either for him or for the Cliff's Edge- related LLCs. See dkt. 133, 134, 177. Cf. dkt. 157, p.5:1-5 (debtor's reply, still ambiguous). In sum, it is ambiguous in what capacity the debtor has
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signed the listing agreement, and therefore whether Urbanlime is being hired by the estate or by Bridge.
For all of these reasons, the ambiguous documentation suggests that Urbanlime may be representing the debtor/estate, not just Bridge. That may be a problem because Urbanlime discloses that it might act as broker for both the buyer and the seller (it is unclear whether it has in fact done so) and the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) give notice such dual agency is disapproved for persons hired by the estate (due to actual and potential conflicts of interest).
Alternatively, even if Urbanlime is not being hired by the debtor/estate directly, the tentative ruling is that it would be inappropriate to authorize a transaction out of the ordinary course under 11 U.S.C. 363(b) that had the effect of authorizing the retention of a professional by Bridge, whose goal should be to maximize the sale price, when that professional also represents a buyer whose interest is to minimize the sale price (among other terms of any purchase and sale). In other words, whether Urbanlime's retention is included within the Bridge Motion (11 U.S.C. 363(b)) or the Unrbanlime Application (11 U.S.C. 327, 328 and/or 363(b)), the tentative rulingis that if Urbanlime is hired it cannot engage in dual agency: it must arrange for a separate agent for the buyer.
That is potentially a serious problem. As noted above, the Villain's Tavern business has been reopened, and it is not clear who is running it. If the sale of the Bridge business and leasehold has already effectively occurred, it is questionable whether it will be possible to "unscramble the eggs" and arrange for the seller (the debtor/estate) and the buyer to have representation that is truly independent.
The tentative ruling is to set a deadline of 5/14/18 for the debtor to file and serve declarations by the debtor and Ms. Haro addressing those things. Those declarations must include all "connections" within the scope of Rule 2014.
Lack of notice to, or authorization by, Mr. Casanova. Mr. Casanova asserts, and the debtor does not deny, that she cannot act for the Cliff's Edge-related LLCs without his consent. But rather than serve him with papers in this bankruptcy case, the debtor has served the LLCs at her own address. See dkt. 133, 134, 177. Cf. dkt. 157.
The debtor argues that there is no harm to Mr. Casanova because he ended up finding out about the proposed transactions, and he can withhold
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his consent if he chooses. See dkt. 157. The debtor ignores the fact that, by not serving Mr. Casanova properly, she has misused the bankruptcy process. She also ignores the fact that, by already marketing the Cliff's Edge-related LLCs when she lacked the right to sell them, she may have promised prospective buyers what she cannot deliver and thereby chilled the bidding for any future marketing and sale.
Conclusion as to Bridge and Urbanlime. The tentative ruling is also to deny the Urbanlime Motion with respect to the Cliff's Edge- related entities. If the foregoing concerns in sections (1)(c)(i)-(vi) are adequately addressed, the tentative ruling is (A) to grant the Bridge Motion and (B) grant the Urbanlime Motion solely with respect to Bridge and GJV, Inc. But first the appropriate declarations must be filed, and the tentative ruling is to continue the Bridge Motion and the Urbanlime Motion to the same date and time as the continued status conference, with any supplemental oppositions and replies due at the usual time prior to the hearing (under the Local Bankruptcy Rules).
Other employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt. 9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure), including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why were resumes for associates, paralegals, and persons who are "of counsel" to the firm not included? (ii) Has counsel waived or amended the provisions in the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs
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that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined in the parties' papers)?
Proposed special counsel: the Snyder firm (dkt. 36, 37). (i) What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
(ii) What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: / / at 2:00 p.m., status report due / / .
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/3/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The only issue this Court intends to address is a continued hearing date in view of the last-minute papers that were filed, to fit the parties' and this Court's own needs.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear.
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash flow and cash collateral motion (dkt. 5, 14, 15, 29). This Court's written order (dkt. 29) erroneously lists the continued hearing as 3/20/18 instead of 4/17/18 at 2:00 p.m., as orally ordered at the hearing on 3/9/18. Nevertheless, it is appropriate in connection with this Status Conference to address the debtor's current and projected cash flow and related issues.
This Court was not persuaded at the hearing on 3/9/18 that the debtor can generate positive cash flow. The debtor is directed to provide a brief update on any plans to generate positive cash flow from her various businesses and properties. It is also appropriate for other parties in interest to address whether there has been adequate disclosure to date regarding the finances of those businesses and properties. The debtor is cautioned that the declaration due on 3/27/18 must provide comprehensive disclosures regarding those businesses and properties: if the debtor cannot show reasonable prospects for positive cash flow within a reasonable time then this Court might have to grant relief from the automatic stay (upon a proper motion), or convert or dismiss this bankruptcy case, at least if the debtor does not abandon unprofitable businesses or properties.
Employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of
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funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt. 9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure), including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why were resumes for associates, paralegals, and persons who are "of counsel" to the firm not included? (ii) Has counsel waived or amended the provisions in the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined in the parties' papers)?
Proposed special counsel: the Snyder firm (dkt. 36, 37). (i) What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
(ii) What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 4/17/18 at 2:00 p.m., status report due 4/3/18. (see order, dkt. 30).
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/9/18:
[no tentative ruling was posted for this hearing]
Debtor(s):
Dana Hollister Represented By David A Tilem
10:00 AM
fr. 6/12/18
Docket 214
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
10:00 AM
fr. 6/12/18
Docket 187
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 39
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 41).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gilbert Alcantara Represented By Dina Farhat
Movant(s):
Nationstar Mortgage LLC as Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 61
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Brent Green Represented By
R Grace Rodriguez
Joint Debtor(s):
Cheryl Jacobs-Green Represented By
R Grace Rodriguez
Movant(s):
WELLS FARGO BANK, N.A. Represented By Robert P Zahradka Darshana Shah
Oneika White-Dovlo Jenelle C Arnold Corey Phuse
Megan Porter Sabekhon Nahar Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HENRY G. GERONIMO
vs DEBTOR
Docket 36
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Eduardo Diaz Garcia Represented By Paul M Allen
Joint Debtor(s):
Cristina Mejia Garcia Represented By Paul M Allen
Movant(s):
Henedina S. Geronimo Represented By Kelly Warren
Henry G. Geronimo Represented By Kelly Warren
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA.
vs DEBTOR
Docket 36
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Paige Lynne Cross Represented By Kahlil J McAlpin
Movant(s):
Wells Fargo Bank, N.A., as trustee, Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
EXETER FINANCE, LLC
vs DEBTOR
Docket 40
Debtor(s):
Alejandro Hernandez Castanon Represented By Jacqueline D Serrao
Joint Debtor(s):
Guadalupe Griselda Inda Represented By Jacqueline D Serrao
Movant(s):
Exeter Finance LLC Represented By Zann R Welch Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NP162, LLC
vs DEBTOR
Docket 42
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1)
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Anna Kusnier Represented By Julie J Villalobos
Movant(s):
NP162, LLC, its Successors and Represented By Michelle R Ghidotti Kristin A Zilberstein
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 36
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lee Arthur Miller Represented By Christopher J Langley
Joint Debtor(s):
Barbara Jean Miller Represented By Christopher J Langley
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Merdaud Jafarnia
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 22
Debtor(s):
Astrid H. Estrada Represented By William G Cort
Movant(s):
Wilmington Savings Fund Society, Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 24
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 26).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rogelio Machuca Represented By Luis G Torres
Joint Debtor(s):
Rosalba Machuca Represented By Luis G Torres
Movant(s):
U.S. Bank National Association, as Represented By
Kelsey X Luu
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] DEUTSCHE BANK NATIONAL TRUST CO
vs
DEBTOR
Docket 23
Grant in part and continue in part to 7/10/18 at 10:00 a.m. as specified below. Appearances are not required on 6/26/18.
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2), and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the
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documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower"). Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include, in addition to Mauro Hernandez (who was served), Maria C. Hernandez, who is described in the DOT as Mauro Hernandez' wife with a joint tenancy in the property.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tomas Aguinaga Pro Se
Movant(s):
Deutsche Bank National Trust Co., Represented By
10:00 AM
Trustee(s):
Alexander G Meissner
Howard M Ehrenberg (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re
10:00 AM
Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yvonne M Guillory Pro Se
Movant(s):
U.S. Bank National Association Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] WELLS FARGO BANK. NA
vs
DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re
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Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Joseph Flores Beauchamp Represented By Ronald A Norman
Movant(s):
Wells Fargo Bank, N.A. Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re
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Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dalia Termeforoosh Pro Se
Movant(s):
U.S. Bank National Association Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HONDA LEASE TRUST
vs DEBTOR
Docket 9
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Nicolas W Saybe Represented By Francis Guilardi
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
Trustee(s):
Carolyn A Dye (TR) Pro Se
10:00 AM
Docket 20
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling is to deny the motion in part and grant it in part as follows.
Texas property. The tentative ruling is to deny the motion with respect to any act by Wells Fargo Bank, N.A. ("Wells Fargo") to pursue its in rem remedies as to the Texas property, for the reasons stated in its opposition (dkt. 34) regarding the debtor's failure to rebut, by clear and convincing evidence, the presumption of lack of good faith due to:
Adequate protection failure: failure to "provide adequate protection as ordered by the court" in the prior case (11 U.S.C. 362(c)(3)(C)(i) (II)(bb));
Plan failure: failure to perform the terms of a confirmed plan (section 362(c)(3)(C)(i)(II)(cc));
Lack of sufficiently substantial change: the debtor has not establishes a sufficiently substantial change in financial or personal affairs to make it likely that the present bankruptcy will not be concluded with a confirmed plan that will be fully performed, at least of the debtor retains the Texas property (11 U.S.C. 362(c)(3)(C)(i)(III)); and
Negative cash flow: negative cash flow at at the Texas property, if Wells Fargo's mortgage is amortized at even the lowest range of permissible interest rates, is another reason to conclude that, if such property is not abandoned, the present bankruptcy case will not be concluded with a confirmed plan that will be fully performed (id.).
(b) Other acts/property/creditors. As to any other acts by Wells Fargo,
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any other property, and any other creditors, the parties are directed to address whether the debtor can show good faith, and whether this case should be dismissed. See Judge Bason's Procedures, posted at www.cacb.uscourts.gov, then search for "362(c)(3)."
Proposed order: If this Court is not persuaded to depart from and moot the foregoing tentative ruling with respect to Wells Fargo, Debtor is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brenda Joyce Arlon Represented By
Anthony Obehi Egbase
Movant(s):
Brenda Joyce Arlon Represented By
Anthony Obehi Egbase
10:00 AM
Docket 14
Deny for the reasons stated in the opposition (dkt. 17) filed by Wilmington Savings Fund Society etc. ("Wilmington"). Appearances are not required.
Proposed order: Wilmington is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Gustavo A Rojas Represented By Scott Kosner
Movant(s):
Gustavo A Rojas Represented By Scott Kosner
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
IRA SERVICES TRUST CO
vs DEBTOR
Docket 24
Tentative Ruling for 6/26/18:
Deny request for relief notwithstanding future bankruptcy cases as set forth below. Appearances are not required on 6/26/18.
Reason: This Court's tentative ruling for 6/12/18 (see below) directed Movant to serve the motion on the original borrowers: (a) USA LA CASA S Investment, LLC, a California Limited Liability Company, and (b) Jaime Casas, and file a proof of service by 6/13/18. As of the prepararation of this tentative ruling, Movant has not complied. Therefore, the tentative ruling is to deny Movant's request for relief notwithstanding future bankruptcy cases.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Grant in part and continue in part to 6/26/18 at 10:00 a.m. as set forth below. Appearances are not required on 6/12/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within
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7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower").
Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: (a) USA LA CASA S Investment, LLC, a California Limited Liability Company, and (b) Jaime Casas.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date in accordance with Rule 7004(b)(1) and (3) (FRBP).
Alternatively, the movant may self-calendar a continued hearing on regular
notice.
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Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Basil Ohakosin Pro Se
Movant(s):
IRA Services Trust Co. CDN FBO Represented By
Edward T Weber
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 68
Debtor(s):
Dominick Rolland Atkins Represented By Matthew D Resnik
S Renee Sawyer Blume
Movant(s):
Ditech Financial LLC Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 105
Tentative Ruling for 6/26/18 (same as for 6/12/18, 5/1/18 4/10/18, 2/27/18, 1/9/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling. This matter has been continued a number of times to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required. There is no tentative ruling. At the hearing on 10/3/17, this court continued the matter to allow time for the parties to negotiate the terms of an adequate protection order. At the hearing, the parties should be prepared to address the status of their negotiations.
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Tentative Ruling for 10/3/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 107).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Partrick I. Ikhifa Represented By
Anthony Obehi Egbase Onyinye N Anyama Edith Walters
W. Sloan Youkstetter
Movant(s):
Wilmington Savings Fund Society, Represented By
Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Cont'd hrg re: Motion for relief from stay [UD] fr. 5/8/18, 5/22/18, 6/12/18
DYLAN COOPER PAUTSCH MYERS, LLC
vs DEBTOR
Docket 35
Tentative Ruling for 6/26/18:
Deny the request for in rem relief (without prejudice to the other types of relief already granted, dkt. 56) because the movant did not serve the motion papers are required by the tentative rulings for 6/12/18 and 5/22/18 (reproduced below). Appearances are not required.
Tentative Ruling for 6/12/18:
Continue to 6/26/18 at 10:00 a.m. as set forth below as a final continuance. Appearances are not required on 6/12/18.
Analysis:
(1) Background. On 5/9/18, Movant filed an amended motion (dkt. 50). The amended motion was not properly served, so this Court's tentative ruling for 5/22/18 (reproduced below) set a continued hearing date of 5/29/18 with directions for Movant to properly serve necessary parties with the motion and notice of the continued hearing date. At the hearing on 5/22/18, counsel for Movant appeared and requested this Court continue the hearing to 6/12/18 (instead of 5/29/18), which was granted. Accordingly, this matter was not listed on this Court's calendar for 5/29/18.
Nevertheless, on 5/23/18, Movant served notice of the continued hearing with a 5/29/18 hearing date (dkt. 53). This Court issued a Notice to Filer of Error and/or Deficient Document and directed Movant to refile the
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notice of continued hearing (see dkt. 54), but as of the preparation of this tentative ruling Movant has not done so.
Therefore, the tentative ruling is to continue the hearing to the date and time stated at the start of this tentative ruling to afford Movant a final opportunity to properly serve necessary parties with the motion and notice of the continued hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Continue to 5/29/18 at 10:00 a.m. as set forth below. Appearances are not required on 5/22/18.
Analysis:
Background. At the hearing on 5/8/18 counsel for the movant engaged in a coluquy with this Court regarding possible relief from the automatic stay that would be effective notwithstanding this or other bankruptcy cases. This matter was continued from 5/8/18 on shortened notice to allow Movant to file and serve appropriate papers requesting such relief. On 5/9/18, Movant filed an amended motion (dkt. 50).
Request for relief in other bankruptcy cases filed in future bankruptcy cases, but not currently pending or past bankruptcy cases
The motion requests relief in future bankruptcy cases (aka "in rem" relief). Implicitly the motion might be seeking relief notwithstanding currently pending or past bankruptcy cases, but it does not actually request such relief.
The motion notes that a large number of persons appear to have alleged that they have an interest in the property, notwithstanding the foreclosure sale that resulted in the movant's interest in the property. The motion implies that the alleged interests might be a complete sham.
This Court recognizes that this might be so. This Court notes (a) the
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large number of alleged interests; (b) the multiple bankruptcy cases that appear to be involved, (c) this Court's order dismissing this case with a two year bar (dkt. 42); and (d) this Court's orders that certain persons connected to this case appear and show cause why they should not be sanctioned (dkt. 48, 49). Based on similar facts and circumstances, this Court has been persuaded in the past to grant relief applicable to past or pending bankruptcy cases (not just future bankruptcy cases), but only when expressly requested (and supported with adequate evidence), and only when requested via an adversary proceeding. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311). The movant has not followed such procedures, nor has the movant made any request for relief expressly applicable to any currently pending or past bankruptcy cases, so this Court construes the motion as requesting relief that is only applicable to future bankruptcy cases.
The motion was not served on most of the persons who apparently assert an interest in the property
The tentative ruling is to continue the motion to the date and time set forth at the start of this tentative ruling for service on the persons described below. According to the motion, various persons "claim to have a 'right to possession' as alleged tenants of the former owners [or singular owner?]" of the property prior to foreclosure (dkt. 50, p.7, para. 5.(4)). The tentative ruling is that such persons (and perhaps others) require notice of the relief sought in the motion.
This Court recognizes that any foreclosure might have wiped out the interests of any tenants. On the other hand in various situations that is not necessarily so - e.g., if the tenancy pre-dated the deed of trust and there was no agreement for subordination or the like then perhaps foreclosure did not wipe out the tenancies; or perhaps applicable nonbankruptcy law would protect residential tenants in some fashion; or perhaps even a bare possessory interest is entitled to some protection (perhaps that interest would be enough for a tenant to obtain the benefits of the automatic stay in their own future bankruptcy case long enough for an orderly move-out).
The point is not that the alleged tenants necessarily have any actual rights or ability to oppose the motion for "in rem" relief - Judge Bason is not prejudging those things one way or the other. Rather, the point is that Judge Bason has due process concerns about granting relief that would be effective notwithstanding any future bankruptcy filing without any notice to the alleged
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tenants or any others who may claim an interest in the property. See generally Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally).
The alleged tenants appear to be Catry Cho and Vivian Cho (dkt. 50, Ex.3); Robert Garviria and John Blanco (dkt. 50, Ex.4); Jonathan Marroquin and Zena Hill possibly aka Zena Louise Hill possibly aka Bonita D Hill (see cases no. 2:18-bk-14316-ER and 2:17-bk-21208-BR) (dkt. 50, Continuation Page, at PDF pp.12-13); Beanca "Bea" Cho (dkt. 50 at PDF pp.12-13); and Juan Herrera (one of the debtors in this case) (id.). In addition, the owner prior to foreclosure appears to have been Martin W. Gentry (the trustor under the deed of trust prior to foreclosure) (dkt. 50, Ex.1, at PDF p.5 of 21), and given the possibility that the alleged tenants or Mr. Gentry assert that some sort of alleged interest survived the foreclosure it appears appropriate to require service on him as well.
Accordingly, the tentative ruling is to direct the movant to serve (i) its papers and (ii) notice of the continued hearing date substantially as follows:
Martin W. Gentry; Catry Cho; Vivian Cho; Robert Garviria; John Blanco; Jonathan Marroquin; Zena Hill; Zena Louise Hill; Bonita D Hill; Beanca "Bea" Cho; Juan Herrera; Anais Cabrera; and any other residents or persons asserting an interest in the premises 34471 Via Gomez
Dana Point, CA 92624
Option for shortened time: This Court has selected a continued hearing date that contemplates shortened notice (per Rule 9006, Fed. R. Bankr. P.) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Herrera Pro Se
10:00 AM
Joint Debtor(s):
Anais Cabrera Pro Se
Movant(s):
Dylan Cooper Pautsch Myers LLC Represented By
Laurie Howell
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 16
Debtor(s):
Sunny Kim Pro Se
Movant(s):
U.S. BANK NATIONAL Represented By Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 55
- NONE LISTED -
Debtor(s):
Sang Chyun Represented By
Donald E Iwuchuku
Trustee(s):
Elissa Miller (TR) Pro Se
11:00 AM
Docket 87
- NONE LISTED -
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
Docket 89
- NONE LISTED -
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
Docket 79
- NONE LISTED -
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
Docket 81
- NONE LISTED -
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
Docket 83
- NONE LISTED -
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
Adv#: 2:17-01174 Stardust Vacation Club and Americana Vacation Club v. MacMillan
fr. 5/2/17, 06/06/17, 8/22/17, 11/14/17, 01/30/18,
5/1/18
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Stardust Vacation Club and Represented By Bruce Grego
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
11:00 AM
Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
(2) Turnover Under 11 U.S.C. § 542 fr. 5/8/18
Docket 1
- NONE LISTED -
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Luis A Solorzano
Giovanni Orantes
11:00 AM
Adv#: 2:18-01050 Pachulski v. Layfield V, LLC, a Delaware limited liability comp
Docket 1
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Layfield V, LLC, a Delaware limited Pro Se Philip Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski Represented By Steven J Kahn
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
11:00 AM
Adv#: 2:17-01503 Wellgen Standard LLC v. Maximum Legal (California), LLP et al
fr. 03/06/18, 3/20/18, 5/1/18
Docket 24
Tentative Ruling for 6/26/18:
See the tentative ruling for the Status Conference in this adversary proceeding (calendar no. 11 for 6/26/18 at 11:00 a.m.).
Tentative Ruling for 5/1/18:
See the tentative ruling for the Status Conference in this adversary proceeding (calendar no. 10 for 5/1/18 at 2:00 p.m.).
Tentative Ruling for 3/20/18:
See the tentative ruling for the Status Conference in this adversary proceeding (calendar no. 5.1 for 3/20/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
See the tentative ruling for the Status Conference in this adversary proceeding (calendar no. 2 for 3/6/18 at 2:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
11:00 AM
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
Richard Pachulski Represented By James KT Hunter
Movant(s):
Advocate Capital, Inc. Pro Se
Advocate Capital, Inc. Represented By Jeffrey I Golden
Advocate Capital, Inc. Pro Se
Plaintiff(s):
Wellgen Standard LLC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
11:00 AM
Adv#: 2:17-01503 Wellgen Standard LLC v. Maximum Legal (California), LLP et al
and (2) Turnover of Property of the Estate Pursuant to 11 U.S.C. § 542 fr. 12/19/17, 03/06/18, 3/20/18, 5/1/18
Docket 1
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
Richard Pachulski Represented By James KT Hunter
Plaintiff(s):
Wellgen Standard LLC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay
11:00 AM
James KT Hunter
1:00 PM
Docket 6
Appearances required by counsel for the debtor and by the debtor themselves.
Current issues. This Court has reviewed the debtors' status report (dkt. 14), and the other filed documents and records in this case.
May MOR (dkt. 18). The MOR purports to cover the period from 5/28/18 (the petition date) to 5/31/18, but is essentially blank, including the section for disclosure of existing insurance coverage (dkt. 18, pdf p. 5). Debtors should be prepared to address (i) whether they have insurance coverage on their residential real property (and any other asset requiring insurance); and, if they do (ii) whether they read the MOR and understood it prior to signing.
Case Status Report (dkt. 14).
Budget Motion. The status report says that a budget motion is not required by Judge Bason's procedures (dkt. 14, pdf p. 3), but that is not correct. See Judge Bason's Procedures, Section VII.F ("Judge Bason requires the use of local forms F 2081-2.2.MOTION.BUDGET and F 2081- 2.2.ORDER.BUDGET"). Did counsel actually review the posted procedures? The tentative ruling is to set a deadline of 6/28/18 to file and serve a budget motion.
Consumers' confidential information. The status report states that the debtors do not have possession, custody, or control of consumers' confidential information (dkt. 14, pdf p. 10), but this Court questions whether that is accurate. What about customer lists from Hey Baby Sales, Inc.? Do the debtors claim any rights to those lists? (e.g. if the case were converted to a chapter 7 case, a sale of the debtors' interest in the company took place, and the buyer wanted the customer lists, would the debtors agree they could not retain or use the lists because the lists are owned by the company?).
The debtors should be prepared to address what steps they will take to
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protect confidential consumer information, and whether a consumer privacy ombudsman is required (11 U.S.C. 332).
Deadlines/dates. This case was filed on 5/28/18.
Bar date: 9/4/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/25/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/14/18 at 1:00 p.m., brief status report due 7/31/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricardo Edmundo Lengua Represented By John A Harbin
Joint Debtor(s):
Pamela Lorraine Lengua Represented By John A Harbin
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Docket 15
- NONE LISTED -
Debtor(s):
R44 LENDING GROUP, LLC a Represented By
Jeffrey S Shinbrot
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Docket 19
Grant the motion (docket no. 19, supplemented by consents, dkt. 26) and approve the budget (id., Ex.1) on an interim basis, subject to the conditions set forth below, with a final hearing at the same date and time as the continued status conference (see calendar no. 4, 6/26/18 at 1:00 p.m.), and a deadline of 6/29/18 for the movant to file and serve a notice of the final hearing. Appearances are not required on 6/26/18.
Conditions specific to this case:
Local Form. Judge Bason's posted procedures (available at www.cacb.uscourts.gov) require the use of Local Form 4001-1. The tentative ruling is to set a deadline of 6/29/18 for the debtor to file that form.
Bookkeeping and meter reading. The budget includes a line item for $500 per month for bookkeeping and $250 per month for "meter reading." Those expenses appear to be a very substantial portion of the gross income of only slightly more than $7,000 per month. See dkt. 19, Ex.1. At the final hearing counsel should be prepared to address why those expenses are not lower, and what due diligence has been performed to explore alternatives (keeping in mind whether those issues will be mooted by any proposed disposition of the property).
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form F2081- 1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court
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(including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the
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following:
Extent. Such liens shall be limited to the type of collateral in
which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506 (c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the
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parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
R44 LENDING GROUP, LLC a Represented By
Jeffrey S Shinbrot
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Docket 5
Tentative Ruling for 6/26/18:
Continue to 8/7/18 at 1:00 p.m. Appearances are not required on 6/26/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/21/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/26/18 at 1:00 p.m., to be concurrent with other hearings in this case. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
R44 LENDING GROUP, LLC a Represented By
Jeffrey S Shinbrot
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Docket 5
Tentative Ruling for 6/26/18:
Appearances are not required on 6/26/18. See below for continued Status Conference date.
Current issues. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 8/14/18 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Revised Tentative Ruling for 5/22/18:
Appearances are not required on 5/22/18. See below for continued Status Conference date.
Current issues.
Sale motions for Stockton and Fresno properties (dkt. 106, 107). Subject to the following, the tentative ruling is to grant these motions on the terms agreed by the parties per dkt. 123, 124, 127, 128, 129, and 130.
Fresno dual agency. This Court's order (dkt. 112) authorized the retention of Newmark Grubb Pearson Commercial ("Newmark") as real estate broker but specified "no dual agency." Id. p.2:19 (emphasis in original.) The Fresno property sale motion concedes (dkt. 107, p.3, n.1) that Newmark has acted in a dual agency capacity. The tentative ruling is that, before lodging any proposed order granting the Fresno motion (dkt. 107), the debtor must file a declaration establishing that another broker has been brought into the transaction to represent one of the two parties, to be paid out of Newmark's commission. The tentative ruling is that such declaration must be served on the parties who have filed written opositions and on the U.S. Trustee.
Good faith findings (11 U.S.C. 363(m)). The tentative ruling is that, before lodging any proposed order that includes a "good faith" finding, the debtor must file a declaration from the buyer (not just the broker and/or debtor) and serve that declaration on the parties who have filed written opositions and on the U.S. Trustee.
Hearing to be set if needed. The tentative ruling is that if this Court is not satisfied with the foregoing declarations then this Court will issue an order setting a hearing to address whatever troubles this Court. This Court does not anticipate, however, that any hearing will be necessary.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at
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least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 6/26/18 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. There is no tentative ruling at the present time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for
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such objections are established).
Continued status conference: 5/22/18 at 2:00 p.m. (per 4/10/18 ruling)
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 76) and the pending motions for relief from the automatic stay and related matters. There is no tentative ruling at the present time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/22/18 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves. This court has reviewed the debtor's chapter 11 status report (dkt. 31) and all other filings in this case.
Current issues
Proposed bankruptcy counsel (dkt. 9, 30, 34, 45, 46). The debtor has now disclosed that the source of the prepetition retainer is Olympic Holdings, LLC ("Olympic"), the managing member of which is also the debtor's managing member, namely Mr. Mark Slotkin. The debtor has also clarified that although Olympic proposes to pay counsel's monthly bills as they come due (to be held in proposed counsel's client trust account until allowed), Olympic reserves the right to request reimbursement of prepetition payments as a general unsecured claim and postpetition payments as an administrative claim - would such postpetition request be on "substantial contribution" grounds? or on other grounds, such as an administrative priority loan (under 11 U.S.C. 364? without interest? with interest?)?
The foregoing facts and questions raise a host of ethical concerns. Any counsel who is paid by a third party (the "Funder") may be subject to conflicts of interest, especially if there are potential avoidance actions, reimbursement or contribution or indemnity claims, or other claims that could be investigated or brought against the Funder. At the hearing, proposed counsel must address the following.
Connections. What are all of the connections (as that term is used in FRBP 2014) among the Funder, the debtor, Mr. Slotkin, and proposed counsel? Are there any conflicts of interest, or potential conflicts? In the past, Judge Bason has followed authority holding that conflicts cannot be waived by a debtor in possession because it is representing the interests of creditors and has no authority to waive conflicts on creditors' behalf. In
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addition, to help in identifying all connections, Judge Bason's posted procedures require the use of Local Form 2014-1 (see those procedures at www.cacb.uscourts.gov for instructions how to fill out that form).
Terms. What are the precise understandings regarding the
funds?
Informed consent of Funder. Mr. Slotkin declares (dkt. 45,
para.5) that both he and Olympic understand that proposed counsel "does not represent us, and only represents the Debtor"? Have the members of Olympic (whoever they might be) been advised of this as well? Have all such persons been advised not only of representation issues but also attorney- client privilege issues, including what can happen if a trustee were to be appointed? Have all such persons been advised of duties of loyalty, whom counsel will continue to represent (if anyone) if a conflict develops, and other ethical and practical concerns? Who provided such advice: independent counsel, or the debtor's proposed counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing?
Other considerations. Has proposed counsel demonstrated or represented to this Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to
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object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: concurrent with any other hearings in this case, and also on 5/1/18 at 2:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
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INGRID ALIET-GASS
vs DEBTOR
Docket 130
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Movant(s):
Ingrid Aliet-Gass Pro Se
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1/23/18, 02/13/18, 03/06/18, 4/17/18, 5/8/18
Docket 1
Tentative Ruling for 6/26/18:
Continue (1) the Status Conference and (2) the motion of Ms. Aliet-Gass for relief from the automatic stay to 9/18/18 at 2:00 p.m. to be concurrent with related hearings. Appearances are not required on 6/26/18.
Tentative Ruling for 5/8/18:
This court anticipates posting a tentative ruling at a later time. [NOTE: no tentative ruling was posted]
Tentative Ruling for 4/17/18:
Continue (1) calendar nos. 5, 6 and 7 on today's calendar, and (2) the motion for relief from the automatic stay filed by Ingrid Aliet-Gass for herself and Western States International, Inc. (dkt. 130, the "R/S Motion") all as set forth below. Appearances are not required on 4/17/18.
Specifically, the tenative ruling is as follows:
Continue (a) the status conference in this bankruptcy case, (b) the status conference in adversary proceeding no. 2:17-ap-01326-NB, and (c) the debtor's motion to amend the complaint in that adversary proceeding (adv. dkt. 125, and see adv. dkt. 130, 131, 139, 142) to be concurrent with (d) the motion by the Bureau of Land Management ("BLM") to dismiss the separate adversary proceeding against it (no. 2:18-ap-01057-NB, adv. dkt. 7), which is currently scheduled for 5/8/18 at 2:00 p.m.
Continue the R/S Motion, which is currently set for 5/1/18 at 10:00 a.m., to the same date and time.
After this hearing date this Court will prepare an order continuing all of the foregoing matters and will serve it on the BLM, Aliet-Gass, and Western
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States International, Inc. at the addresses known to this Court, and that order will also direct the debtor to serve those parties and any other known parties with an interest in the foregoing matters.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: 7/10/17 and 1/26/18 (sufficiently served, dkt. 56, 60, 103, 107, 110, 111, 121, 123).
Plan/Disclosure Statement*: TBD.
Continued status conference: see above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Default judgment motion - Wilshee (adv. dkt. 140). Deny for lack of service. See dkt. 140 at PDF p.4 (serving defendant at "ENTER ADDRESS HERE").
Default judgment motion - JNDDC, LLC (adv. dkt. 135). Deny for lack of service. See dkt. 135, last two pages (defendant not listed in service list).
Default judgment motion - Flavio Rodriguez (adv. dkt. 133). Deny for lack of service. See dkt. 133 at PDF p.8 (marked up by someone - movant? - to show deficiencies in completion of proof of service) and dkt. 133 last two pages (defendant not listed on service list).
Default judgment motion - Jag Pathirana (adv. dkt. 134). Grant. It appears that plaintiff has abandoned claims against defendant Jag Pathirana other than "clearing title" to the plaintiff/debtor's alleged property interests at
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issue in the complaint. That appears to moot the relevant concerns previously raised by this court (see adv. dkt. 116, exhibit).
Case status report (case dkt. 122) and adversary proceeding against Bureau of Land Management (Adv. No. 2:18-ap-01057-NB). The debtor should be prepared to provide an update as to the status of these matters.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: 7/10/17 and 1/26/18 (sufficiently served, dkt. 56, 60, 103, 107, 110, 111, 121, 123).
Plan/Disclosure Statement*: TBD.
Continued status conference: 4/10/18 at 2:00 p.m., brief status report due 4/3/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status Reports (main case dkt. 122; adv. no. 2:17-ap-01326-NB, dkt. 132). The debtor/plaintiff suggests that it will be filing a motion to approve a disclosure statement. Is that premature, given the following issues?
Motion to amend complaint (adv. dkt. 125). The parties should be prepared to address the issues raised in the motion and in the oppositions
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filed by the California Department of Conservation, Division of Oil and Gas, and Geothermal Resources ("DOGGR") (adv. dkt. 125, 130, 131).
In addition, the debtor/plaintiff should be prepared to address whether the proposed amended complaint cures the deficiencies in the original complaint, and whether any ruling on the motion to amend the complaint should be deferred until after default judgments are (or are not) obtained on the existing (original) complaint, for the reasons set forth in this Court's Memorialization Of Reasons For Denying Motions For Default Judgments (captioned for the adversary proceeding but erroneously filed in the main case as dkt. 118). See also Order denying prior motions for defaul judgments (adv. dkt. 117) and subsequent Motions for default judgments (adv. dkt. 133, 134, 135).
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60, 103, 111, 121, 123); supplemental date of 1/26/18 (order served late, but the tentative ruling is to excuse that lateness, dkt. 107, 110).
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/20/18 at 2:00 p.m., status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue the status conferences in both the main case and the adversary proceeding (adv. no. 2:17-ap-01326-NB) to 2/13/18 at 2:00 p.m. with a status report due 2/6/18 (at which time other documents are also due as set forth below) for the reasons set forth below. Appearances are not required on
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1/23/18.
Current issues
Reasons for continuance: (i) because of the problems noted below;
because of the debtor's untimely last-minute filing of status reports (the debtor is cautioned that continued untimely filings may result in sanctions);
because of the inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government, (iv) to be concurrent with the (improperly self-calendared) motion to amend the complaint, and (v) in view of the debtor's various status reports (main case dkt. 117, adv. dkt. 122, 127, 129).
Bar date. The debtor's proofs of service of the bar date order are missing exhibits and incomprehensible (see dkt. 110, 111). The debtor is directed to file, no later than 2/6/18, either a corrected proof of service or an application (supported by a declaration) to set yet another supplemental bar date - whichever is appropriate.
Status of existing complaint in adversary proceeding. On 11/20/17 this court issued an order (adv. dkt. 117) denying the plaintiff/debtor's motions for default judgments, without prejudice. The debtor now seeks to amend the complaint (adv. dkt. 125). All of these things moot the motions for default judgments so the hearings on those motions have been vacated.
In addition, the tentative ruling is to memorialize this court's reasons for denying the motions for default judgments by filing on the docket a copy of this court's adopted tentative ruling for the 11/14/17 hearings on those motions (reproduced within the tentative ruling for calendar no. 9. 1/23/18 at 2:00 p.m.).
Motion to amend complaint (adv. dkt. 125). This motion was self- calendared for 2:00 p.m. (a time that cannot be used for self-calendaring) on 2/13/18. Nevertheless, the tentative ruling is to permit that motion to proceed at that time.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60); supplemental date of 1/26/18, to be served no later than 11/15/17 (per Order, dkt. 107) but proofs of service are incomprehensible (dkt. 110, 111) - see above under "current issues".
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Plan/Disclosure Statement*: TBD.
Continued status conference: as set forth above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the following issues.
Current issues. The debtor has filed a second (very belated) proof of service (dkt. 103) of this court's order (dkt. 56) setting a bar date. Under that order the bar date was set as 7/10/17 and service was required no later than 5/8/17. What does the debtor's belated service do except cause confusion? Does the debtor require a new bar date for previously unknown creditors?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60; but see above under "current issues").
Plan/Disclosure Statement*: TBD.
Continued status conference: 1/30/18 at 2:00 p.m., status report due 1/16/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
The tentative ruling is to dismiss this case with a 180 day bar for willful failure to appear in proper prosecution, as set forth below. See 11 U.S.C. 109(g)(1). Appearances are not required.
Reasons: This case was filed on 11/23/16. The debtor's assets consist of disputed rights in hydrocarbon leases. See Status Report, dkt. 81. Realizing any value from those rights apparently depends on retaining special counsel who will diligently prosecute the debtor's claims. Despite numerous opportunities, the debtor has failed to satisfy the prerequisites for retention of special counsel.
Inadequate declarations about "connections"
At the hearing on 7/11/17 this court extensively reviewed the evidence that would be required before this court could approve the application to employ the latest proposed special counsel, Mr. Montes. That included a requirement of detailed declarations from Mr. and Mrs. Hoats regarding any transfers of any property (including intangible property) involving the debtor and any of them, as well as any other "connections" (as that term is used in Rule 2014, Fed. R. Bankr. P.) to the debtor and any other party in interest.
This court recognizes that Mr. and Mrs. Hoats are not the professionals whose employment is being sought. Nevertheless, given their very close ties to the debtor, and their failure to disclose connections to the prior proposed special counsel that raised questions about conflicts of interest, this court orally ordered the debtor to provide their declarations at the hearing on 5/2/17. That order has been ignored.
Knudsen factors
This court also directed Mr. Montes to file a declaration addressing the factors that this court must consider in assessing his request to be paid more frequently than once every 120 days. See In re Knudsen, 84 B.R. 668, 672-
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73 (9th Cir. BAP 1988). Mr. Montes has filed such a declaration (dkt. 82) and has adequately summarized the factors (id., p.3:15-23) but he has not adequately addressed the third factor, which he summarizes as: "any funds paid but later disapproved by the court can be recovered from the professional" in one or more of the ways listed in Knudsen. (Emphasis added.) Those ways are:
[a. Holdback] retainer payments are for only a percentage of the amount billed so that the likelihood or necessity of repayment is minimal [Mr. Montes suggests a 10% holdback, which has not been shown to be adequate - the typical amount is 20%, and that typically applies only to well established firms whose ability to repay funds is reinforced by the firm's longevity and reputation or similar considerations];
[b. Bond] counsel can post a bond covering any possible reassessment [Mr. Montes has not addressed this factor];
[c. Financial ability to repay] counsel's financial position makes it certain that any reassessment can be repaid [Mr. Montes has not addressed this factor]; [and/or]
[d. Hold funds in trust account] funds paid prior to allowance are held in a trust account until a final or interim fee allowance is made [Mr. Montes has only offered to place the 10% proposed holdback in a trust account]. [Knudsen, 84 B.R. 668, at 672]
The debtor appears to cite the wrong statutory authority
The debtor's application to employ Mr. Montes (dkt. 65) requests that his employment be approved under subsection "(e)" of 11 U.S.C. 327. But that subsection only applies by its terms to an attorney who "has represented the debtor" (i.e., prepetition counsel whose employment is to continue postpetition). Id. (emphasis added).
That is not the end of the analysis, because it has been held that special counsel can be employed even when such counsel has not represented the debtor prepetition. See In re Fondiller, 15 B.R. 890, 892 (9th Cir. BAP 1981) (emphasis added), appeal dism., 707 F.2d 441 (9th Cir.
1983). Although Fondiller has been interpreted as authorizing employment under subsection (e) (see, e.g., Covenant Fin. Group of Am., Inc., 243 B.R. 450, 455 & n. 8 (Bankr. N.D. Ala. 1999)), the precise holding of Fondiller appears to be that special counsel can be employed under subsection "(a)" of Section 327 because any "omission" in subsection "(e)" does not limit the
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general authority in subsection "(a)." See Fondiller, 15 B.R. at 891-92 (interpreting § 327(a) by comparison with §§ 327(c) and (e)).
True, the precise statutory authority appears to make little if any practical difference, because Fondiller held that when counsel is only employed to perform limited services, then an interest "adverse to the estate" means "an adverse interest relating to the services which are to be performed by that attorney," which appears to mean that the inquiry for proposed special counsel under subsection "(a)" is the same as under subsection "(e)." Fondiller, 15 B.R. at 892 (emphasis added). Mr. Montes' declaration (included in dkt. 65) appears to meet this test because he states that he has no adverse interest.
Nevertheless, as stated above this court has required additional evidence from Mr. and Mrs. Hoats and that evidence has not been provided. In addition, because the debtor has sought authority under subsection "(e)" instead of "(a)" it appears not have met the technical requirements for employment of Mr. Montes.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 7/11/17:
Appearances required.
Current issues
Employment of special counsel. Deny the application to employ the Law Offices of M. Brian McMahon (dkt. 46) because he no longer intends to pursue employment. See dkt. 73, para. 3. Deny the application to emply the Law Offices of Mike Montes, Jr. (dkt. 65) due to the failure to address the issues raised by this court in the tentative ruling for 5/2/17 (reproduced below) (without reaching the issues raised by the U.S. Trustee's objection, dkt. 72, and the debtor's reply, dkt. 74). The U.S. Trustee is directed to lodge proposed orders denying each application within seven days after this hearing date.
Lack of progress. Should this case be dismissed for lack of prosecution?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
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Bar date: 7/10/17 (order timely served, dkt. 56, 60).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/22/17 at 2:00 p.m., status report due 8/15/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Continue to 7/11/17 at 1:00 p.m. to allow the debtor time to prosecute an employment application regarding Mr. Motes (see debtor's case status report, dkt. 62). Appearances are not required on 6/13/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/2/17:
Appearances required. There is no tentative ruling, but the debtor's proposed attorney, Brian McMahon Esq., should be prepared to address the concerns set forth in the U.S. Trustee's objection (dkt. 49) and the other issues set forth below.
Current issues.
Proposed special counsel.
Background. On 4/5/17 the debtor filed an application for authority to employ the law offices of Mr. McMahon as special counsel under 11 U.S.C. 327(e) (dkt. 47). On 4/12/17 the United States Trustee ("UST") filed an objection to the employment application, which expressed concerns about the payment arrangement proposed in the application (dkt. 49).
The debtor filed a statement of disinterestedness for Mr. McMahon (dkt.53), and a reply (dkt.55), stating that a third party, Ms. Lilian Hoats, will be paying the attorney fees for Mr. McMahon's representation. Ms. Hoats is the CEO of Inviron Technologies, Inc. ("Managing Member"), which is the
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debtor's managing member (dkt. 55, Ex.1, p.1, recital "b"). Attached to the reply (dkt. 55, Ex.1) is a written document that purports to be a waiver of conflicts (if any exist) among the debtor, Ms. Hoats, and the Managing Member (the "Hoats/Managing Member Conflict Waiver").
The Attorney-Client Retainer Agreement attached to the employment application (dkt. 46, Ex.1) provides that Mr. McMahon is representing not only the debtor but also its affiliates Riverwood Energy, LLC ("Energy Affiliate") and Riverwood Resources Ltd. ("Resources Affiliate"). This court is not aware of the precise organizational and contractual relationships among the debtor, Energy Affiliate, and Resources Affiliate, nor of any written document purporting to be a waiver of conflicts (if any exist) among them.
Statutory provisions and rules
Although special counsel does not have to be "distinterested" (compare 11 U.S.C. 327(a)), special counsel still must not "represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed." 11 U.S.C. 327(e) (emphasis added). Under Rule 2014 (Fed. R. Bankr. P.) both Mr. McMahon and the debtor were supposed to disclose all connections between Mr. McMahon and "the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee."
The disclosures have not been adequate. This court does not know enough about the underlying litigation and the organizational and contractual relationships among the various entities to assess whether there may be conflicts of interest between the debtor, on the one hand, and Ms. Hoats, Managing Member, Energy Affiliate, and/or Resource Affiliate.
A DIP's conflicts generally cannot be waived
Any purported conflict waiver probably cannot waive actual conflicts.
See, e.g., In re Perry, 194 B.R. 875, 880 (E.D.Cal.1996) (waiver of conflict by non-debtor parties was insufficient and "[i]nformed consent could not be obtained" because "the real parties in interest in this case are the creditors, and that is not a waivable conflict"); In re B.E.S. Concrete Products, Inc., 93 B.R. 228, 235 (Bankr. E.D. Cal. 1988).
But while actual conflicts of interest create a violation of 11 U.S.C. 327 which would require disqualification of the proposed professional, the mere existence of a potential conflict of interest does not require disqualification, and it is up to the court's discretion whether the purported conflict is
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sufficiently threatening to the estate to warrant disqualification. In re Wheatfield Business Park, LLC, 286 B.R. 412, 421 (Bankr. C.D. Cal. 2002).
Are proposed counsel and the debtor aware of any actual conflicts?
How about potential conflicts?
The purported conflict waiver is incomplete
The Hoats/Managing Member Conflict Waiver is not actually signed by Ms. Hoats in her individual capacity (she has only signed it on behalf of the debtor's Managing Member). In addition, as noted above, this court is not aware of any purported conflict waiver among the debtor and Operating Affiliate or Resources Affiliate.
There might be conflicts among the debtor and Ms. Hoats A third party who funds a retainer for the debtor (the "Funder")
generally has some pre-existing relationship with the debtor, and/or some motivation to providing the funding. Those things increase the likelihood that the Funder could be the recipient of an avoidable preference, or might have alter ego liability, or otherwise might have interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a third party is not outright prohibited, it is fraught with ethical concerns. At the hearing, counsel for the debtor and proposed special counsel should be prepared to address the following.
Terms. What are the precise agreements, understandings or expectations regarding the funds -- e.g., are the funds a loan, a gift, an investment, or something else?
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and that the sole attorney-client relationship and duty of loyalty is with the debtor, not the Funder? Who provided such advice: independent counsel? counsel for the debtor? the debtor's proposed special counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing? Ms. Hoats has signed the Hoats/Managing Member conflict waiver on behalf of the debtor: how can she, acting for the debtor, waive conflicts with herself?
Other considerations. Has proposed special counsel demonstrated or represented to the Court the absence of an actual
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or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Lotus Prop's LP, 200 B.R. 388 (Bankr. C.D. Cal. 1996) (rejecting per se disqualification when fees are paid by third party); and compare In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990) (per se rule). See generally In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/4/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status report. This court's previous tentative ruling (reproduced below) directed the debtor to file a status report by 3/14/17. Why has no such status report been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report
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due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/7/17:
Continue to 4/4/17 at 2:00 p.m., status report due 3/14/17. No appearances are required on 2/7/17.
(1) Current issues
This case was filed on 11/23/16. The debtor's status report (dkt. 34) states that the debtor intends to retain special counsel, and the monthly operating reports (dkt. 37, 38) appear to show no activity other than opening DIP bank accounts and paying associated fees. Although progress in this case has been slow, it does not appear efficient to hold a status conference at this time. If substantially more progress is not shown by the next status conference, this court may dismiss this case for failure to appear in proper prosecution. See 11 U.S.C. 109(g)(1), 349.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Substitution of attorney. On 12/23/16, the debtor filed a substitution of attorney (dkt. 22) reflecting that current proposed counsel is Giovanni Orantes, Esq. Why has no employment application been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
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Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/13/16:
Appearances required.
Current issues
Counsel for the debtor should be prepared to address why no status report has been filed (see dkt. 3); why the docket does not reflect that anything has been done in this case to date; and why this court should not convert or dismiss this case.
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
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Appearances required by counsel for the debtor and by the debtor(s) themselves, pursuant to the order setting this status conference (dkt. 3).
Current issues.
First Day Motions. The debtor should be prepared to address the necessity of first day motions such as cash collateral, payroll, utilities, etc. To the extent that those motions are necessary, why have they not yet been filed?
Deadlines/dates. This case was filed on 11/23/16.
Bar date*: to be set at the continued status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 12/13/16 at 2:00 p.m., initial status report due 11/29/16.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
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Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
(2) Turnover Under 11 U.S.C. § 542 fr. 5/8/18
Docket 1
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Luis A Solorzano
Giovanni Orantes
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Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
fr. 02/13/18, 03/06/18, 4/17/18, 5/8/18
Docket 125
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
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Michael Smushkevich Pro Se
David Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
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Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
3) Interfering with Economic Relationship; 4) Slander of Title;
5) Quiet Title; 6) Declaratory Relief
fr. 8/22/17, 11/14/17, 1/23/18, 02/13/18, 03/06/18, 4/17/18,5/8/18
Docket 1
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
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DOES 1 through 10, inclusive Pro Se
David Smushkevich Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Paul Guiller Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
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on principal residence [11 U.S.C. section 506(d)] with creditor Trinity Financial Services, LLC
Docket 19
Appearances required. There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Enrique Saldana Lomeli Represented By William G Cort
Trustee(s):
Kathy A Dockery (TR) Pro Se
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on principal residence [11 U.S.C. section 506(d)] with creditor Specialized Loan Servicing, LLC
Docket 13
Grant motion, subject to Specialized Loan Servicing, LLC's conditional non- opposition (dkt. 16), which was erroneously not linked to the motion, but which this Court nevertheless reviewed, and which requests that avoidance of its lien be subject to both completion of debtor's chapter 13 plan and receipt of a discharge. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alfredo Gonzalez Carrillo Represented By
L. Tegan Rodkey
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 7
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling is to grant the motion in part, with a valuation of $13,225 pursuant to Exhibit 2 to the motion (dkt. 7). Counsel for the debtor is directed to address the following issues.
First, the motion is missing any evidence regarding the lien (see dkt. 7, p.4, paragraph 5.c.), which does not appear to be fatal to the motion but probably would help on the following issue. The the vehicle is described as a "2016" Hyundai Elantra, so it is possible that this is a "910" day vehicle (11
U.S.C. 1325(a), hangling paragraph) meaning that 11 U.S.C. 506 does not apply, so the claim cannot be bifurcated, if the debt was incurred within 910 days before the petition date, i.e., 5/29/18 - 910 days = 12/1/15. Counsel for the debtor is directed to provide an offer of proof regarding the date on which the debt was incurred.
Second, assuming that 11 U.S.C. 506 does apply, there is no indication that the vehicle is for anything other than personal, family, or household use, so the valuation is not just replacement value but also "the price that a retail merchant would charge" for a comparable vehicle. The debtor has used a "private party" range of values in Exhibit 1, so that valuation is irrelevant. Only Exhibit 2, which provides "retail" value of $13,225 in the last column, is relevant. Counsel for the debtor is directed to address why he attempted to use an impermissible measure of value, and what steps he will take to assure that his office does not do this in future.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling,
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thereby adopting it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lilian G Franquez Represented By Kevin Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 32
Deny. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons for denial: The evidence of valuation is a "sale to private party," whereas 11 U.S.C. 506(a)(2) requires use of "the price a retail merchant would charge" for the same make and model in similar condition (assuming the vehicle was acquired for personal, family, or household purposes, as it appears to have been). Counsel for the debtor is directed to take steps to assure that this same issue does not arise in future.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Antonio Miranda Represented By Rebecca Tomilowitz
Joint Debtor(s):
Lidia Miranda Represented By Rebecca Tomilowitz
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 18
Grant in part, reducing the secured claim to $15,275. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Replacement value is required under 11 U.S.C. 506(a)(2). There is no evidence that the vehicle was acquired for any business, or any other reason apart from "personal, family, or household purposes." Therefore the replacement value is "the price a retail merchant would charge" for a vehicle of the same make, model, and condition.
The evidence in support of the motion (dkt. 18, Exhibit, 1st page) lists the retail price as $12,300 plus $2,150 for (low) mileage plus $825 for being a certified pre-owned vehicle, for a total of $15,275. The debtor ignores all but the first of these numbers, with no stated basis for doing so.
Counsel for the debtor is directed to take steps to assure that the same miscalculation does not occur in future.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Molly Flora Wales Represented By Devin Sawdayi
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 63
- NONE LISTED -
Debtor(s):
Lazaro Salcido Represented By Oren Tepper
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 46
Grant (reconvert case from Chapter 13 to Chapter 7). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Scott Thomas Represented By Jeffrey J Hagen
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 40
Grant motion to approve compromise (see signed Settlement Agreement, dkt. 40, Exh. 1) under Rule 9019. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Min Represented By
Ryan A. Stubbe
Joint Debtor(s):
Sung Yi Min Represented By
Ryan A. Stubbe
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 23
Continue Ms. Moreno's motion (dkt. 23, 25) to expunge this bankruptcy case (Case No. 2:15-bk-13511-NB) to 8/2/18 at 8:30 a.m. with a deadline of 7/9/18 to file and serve the documents described below. Appearances are not required on 6/28/18.
Required documents:
Declarations. Ms. Moreno's motion is supported by her declaration in English. But she concedes that she does not read or write either English or Spanish (dkt. 23, p.10, para.8). Accordingly, the tentative ruling is that her English declaration does not constitute any evidence at all, so the motion is unsupported by any evidence.
The tentative ruling is that Ms. Moreno will need to sign a decaration in Spanish (with an English translation), and that must be supported by the declaration (in English) of a translator certifying (a) that the Spanish declaration signed by Ms. Moreno is a true and correct translation of the English version (with a copy of that English version attached) and (b) that the Spanish version was read out loud to Ms. Moreno and, if necessary, explained to her in Spanish, before she signed it.
Efforts to pursue alleged wrongdoer. The tentative ruling is that Ms. Moreno's declaration must disclose all efforts she has undertaken to seek prosecution of Mr. Munoz (e.g., police reports, any reports to the office of the United States Trustee, etc.). Absent evidence of attempts to pursue Mr. Munoz, the tentative ruling is that Ms. Moreno's denials of any involvement in the bankruptcy petitions lack sufficient support for the extraordinary remedy of expunging the bankruptcy cases.
Proof of service. The proof of service (dkt. 23, last page) does not show service on all creditors in both of the allegedly fraudulently filed bankruptcy
8:30 AM
cases (see Creditor Matrix, Case No. 2:15-bk-13511-NB and Case No. 2:16- bk-17335-NB), nor on Mr. Jose Munoz (the alleged wrongdoer), nor on Mr.
Velentin Moreno-Perez (the debtor's soon-to-be former husband, whose involvement in the alleged fraud is unclear), nor on any entities who were granted in rem relief from the automatic stay (see Case 2:16-bk-17335-NB, dkt. 34, granting such relief to CBB Properties, LLC). The tentative ruling is to required service on all such persons.
Non-disturbance of in rem relief. Ms. Moreno does not explain exactly what is meant by her request to "expunge" this bankruptcy case. The tentative ruling is to interpret that request as follows, and in any event to limit any relief as follows.
Expungement is intended to assist Ms. Moreno to repair her credit with the credit reporting agencies, and with any other person seeking to verify her credit history. Expungement is also intended to eliminate any future consequences of these past bankruptcy cases (see, e.g., 11 U.S.C. 109(g)(1) or 362(c)). Expungement is not intended, however, to vacate or in any way disturb any prior grant of in rem relief. See, e.g., Case No. 2:16-bk-17335- NB, dkt. 34 (order granting in rem relief) (the "CBB In Rem Order"). Such relief is still appropriate because it was not necessary for Ms. Moreno to have been a party to any "scheme" under 11 U.S.C. 362(d)(4) for in rem relief to have been warranted. See In re Vazquez (Bankr. C.D. Cal., Case No. 2:16- bk-10699-NB, dkt. 75.
Accordingly, the tentative ruling is that if Ms. Moreno wishes to obtain relief from the CBB In Rem Order, or any other in rem order, she must do so by separate motion or adversary proceeding.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Julia Moreno Represented By
Alan W Forsley
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 54
Continue Ms. Moreno's motion (dkt. 23, 25) to expunge this bankruptcy case (Case No. 2:15-bk-13511-NB) to 8/2/18 at 8:30 a.m. with a deadline of 7/9/18 to file and serve supplemental documents, as described in the tentative ruling for calendar no. 9 (6/28/18 at 8:30 a.m.). Appearances are not required on 6/28/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Julia Moreno Represented By
Alan W Forsley
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 25
Grant (sustain the objection to claim number 2 in full). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alice H. Liu Represented By
Michael E Clark
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 22
Continue to 8/2/18 at 8:30 a.m. to address the following issues. Appearances are not required on 6/28/18.
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
No later than 7/9/18 the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No additional fees absent specific order. Counsel is prohibited from charging any additional fees related to this continuance and any supplemental papers addressing the cost/benefit analysis, unless this Court expressly states in a future tentative ruling or written order that such fees may be charged.
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis Alfaro Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Amalia Alfaro Represented By Rebecca Tomilowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Jerson Estrada; request claim to be disallowed
Docket 24
- NONE LISTED -
Debtor(s):
Hossein Daneshvar Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
9023 and 9024 of order and notice of dismissal
Docket 19
- NONE LISTED -
Debtor(s):
Myrna Garcia Lorenzo Represented By Peter L Nisson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 25
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues identified in this Court's order to show cause (dkt. 25) and the related order deny debtor's reconsideration motion (dkt. 24).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Myrna Garcia Lorenzo Represented By Peter L Nisson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 24
See the tentative ruling for calendar no. 16 (6/28/18 at 8:30 a.m.).
Debtor(s):
Christopher David Mercado Represented By Richard McAndrew
Joint Debtor(s):
Alma Cornelia Mercado Represented By Richard McAndrew
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 6/7/18
Docket 10
Tentative Ruling for 6/28/18:
Appearances required. There is no tentative ruling but counsel for the debtor is directed to address the following:
any response from creditors (permitted at the hearing per this Court's order to show cause why this case should not be dismissed (dkt. 10, last para.));
why the motion for permission to file this case (dkt. 24) was not served on some creditors until 6/7/18 (dkt. 28) and not served on other creditors until 6/19/18 (dkt. 33); and
why the motion to continue the automatic stay (dkt. 16) - which was granted at a hearing on 6/19/18 at 10:00 a.m. (calendar no. 11) - similarly was not served on some creditors until 6/20/18 (dkt. 38), and whether that oral ruling should be vacated.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 6/7/18:
Continue to 6/28/18 at 8:30 a.m. to be concurrent with the debtors' self- calendared motion for permission to file a new bankruptcy case (dkt. 24) provided that the debtors are directed to serve that motion on the full creditor matrix via U.S. mail no later than 6/8/18. Appearances are not required on 6/7/18.
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised by this court's Order to Show Cause (dkt. 10).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Christopher David Mercado Pro Se
Joint Debtor(s):
Alma Cornelia Mercado Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 8
Appearances required. The tentative ruling, subject to responses at the hearing, is to dismiss this case with a 180 day bar against being a debtor in bankruptcy pursuant to 11 U.S.C. 109(g)(1), for the reasons set forth in this Court's Order to Show Cause (dkt. 8).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Trent Lee Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 51
Appearances required. This Court has reviewed Mr. Knowles's response (dkt. 57). There is no tentative ruling, but Mr. Knowles is directed to appear and address the issues raised by this Court's Order to Show Cause (dkt. 51).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ramona Theresa McCauley Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 06/07/18
Docket 63
Debtor(s):
Boaz Tribelsky Represented By Michael F Chekian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 24
Debtor(s):
Blas Mis Valdez Represented By Guy R Bayley
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 6/7/18
Docket 12
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised by the chapter 13 trustee (dkt. 26).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gabriel Apolonio Alarcon Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Maria Luisa Alarcon Represented By
Ramiro Flores Munoz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 5/3/18
Docket 87
Debtor(s):
Christopher Michael Gerakios Represented By Arsen Pogosov
Joint Debtor(s):
Nicole Lee Gerakios Represented By Arsen Pogosov
Movant(s):
Christopher Michael Gerakios Represented By Arsen Pogosov
Nicole Lee Gerakios Represented By Arsen Pogosov Arsen Pogosov
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 0
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised by this Court's Order (dkt. 100) setting this matter for hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Dermont Hill Represented By Daniel King
Joint Debtor(s):
Regina Delorse Hill Represented By Daniel King
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO.
vs DEBTOR
Docket 59
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 61).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Darlene Goodrum Represented By Brad Weil
Movant(s):
Deutsche Bank National Trust Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK N.A.
vs DEBTOR
Docket 18
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
10:00 AM
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gina Cabrera Represented By
A Mina Tran
Movant(s):
Wells Fargo Bank, N.A. Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST, N.A. vs
DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
10:00 AM
If this order is duly recorded in compliance with applicable State laws
governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hwan Sik Lee Pro Se
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
REDIGER INVESTMENT MORTGAGE FUND, LLP
vs DEBTOR
Docket 38
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether they will agree to a continuance for refinancing as requested by the debtor (see the debtor's response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Movant(s):
Rediger Investment Mortgage Fund Represented By
Misty A Perry Isaacson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
vs DEBTOR(S)
Docket 62
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Edgar A Gonzalez Represented By
Rene Lopez De Arenosa Jr
Joint Debtor(s):
Maria F Gonzalez Represented By
Rene Lopez De Arenosa Jr
Movant(s):
Deutsche Bank Trust Company Represented By April Harriott
Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE LLC
vs DEBTOR
Docket 72
Debtor(s):
James Andrew Simoens Represented By Matthew D Resnik
Movant(s):
NATIONSTAR MORTGAGE LLC Represented By
Julian T Cotton Jason A Cottrill Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO.
vs DEBTOR
Docket 48
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Melanie Shontee Robinson Represented By Matthew D Resnik
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CITIMORTGAGE, INC
vs DEBTOR(S)
Docket 41
Debtor(s):
Glenda Bonita Dunn Represented By Sam Benevento
Joint Debtor(s):
Andre Dwayne Dunn Sr. Represented By Sam Benevento
Movant(s):
CitiMortgage, Inc. Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK N.A. vs
DEBTOR
Docket 44
Debtor(s):
Kelly Renee Lewis Represented By Eliza Ghanooni
Movant(s):
US Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
RONALD A. MACKIN, TRUSTEE OF THE MACKIN FAMILY TRUST UTD
vs DEBTOR
Docket 89
- NONE LISTED -
Debtor(s):
Willie John Riley Represented By Levi Reuben Uku
Movant(s):
Mackin Living Trust dtd 10/23/93 Represented By
Sally A Williams
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer
10:00 AM
HSBC BANK USA, N.A.
vs
DEBTOR (S)
Docket 42
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Alejandro Hernandez Castanon Represented By Jacqueline D Serrao
Joint Debtor(s):
Guadalupe Griselda Inda Represented By Jacqueline D Serrao
Movant(s):
HSBC Bank USA, N.A. Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NPI DEBT FUND I, LP
vs DEBTOR
Docket 14
Grant the motion (dkt. 14, 17) as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling to the order, thereby incorporating it as this court's final ruling. See LBR 9021-1(b) (1)(B).
Tentative findings of fact:
In violation of the loan documents, an interest in the subject property purportedly was transferred to the debtor, either individually or as trustee of a purported trust.
The transfer was part of a scheme to delay or hinder movant’s remedies against the property by implicating the automatic stay of 11 U.S.C. 362(a) in the debtor’s bankruptcy case.
This court does not find that the debtor was part of any such scheme (i.e., based on the record before this court it appears that this may be a so-called “hijacked” or "dumping" case in which a third party seeks to implicate the automatic stay for their own benefit, without the debtor’s participation or acquiescence, by transferring property into a random bankruptcy estate, or by back-dating or falsifying a grant deed to make it appear that such a transfer occurred).
Tentative conclusions of law:
Pursuant to the legal analysis in In re Vazquez (case no. 2:16-bk-
10:00 AM
10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
Jurisdiction. This court has jurisdiction to grant the type of relief requested in the motion.
Termination of stay. The automatic stay, if it applies, is terminated pursuant to 11 U.S.C. 362(d)(1), (d)(4), and 1301(c).
Relief notwithstanding future bankruptcy cases. If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. The 14 day stay under FRBP 4001(a)(3) is waived.
No prejudice to debtor intended. Nothing in the foregoing disposition should be interpreted to support the application of 11 U.S.C. 109 (g)(2) in the event of any future dismissal of this bankruptcy case. See generally In re Leafty, 479 B.R. 545, 550 (9th Cir. BAP 2012); In re Payton, 481 B.R. 460 (Bankr. N.D. Ill. 2012).
Grant the request for retroactive annulment of the stay. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Marcos Chavez Pro Se
Movant(s):
NPI Debt Fund I, LP Represented By Brian R Nelson
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
ALAN S. VERTUN, WILLIAM SCHMIDT AND BARBARA SCHMIDT, JANICE WASSERMAN AND JEFFREY CONSTINE
vs DEBTOR
Docket 8
Debtor(s):
Natalie V Howard Pro Se
Movant(s):
Alan S Vertun, William Schmidt and Represented By
Julian K Bach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CRESCENT CAPITAL HOLDINGS, LLC
vs DEBTOR
Docket 17
Debtor(s):
Motiv8 Investments, LLC Represented By Kevin Tang
10:00 AM
vs DEBTOR(S)
Docket 45
Debtor(s):
Charlton Harold Cotillier Represented By Kevin T Simon
Joint Debtor(s):
Ashley Jean Sparks Represented By Kevin T Simon
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 28
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Elizabeth Helen Mulford Represented By Sina Maghsoudi
Movant(s):
Ally Bank Represented By
Adam N Barasch
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TD AUTO FINANCE LLC
vs DEBTOR
Docket 349
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
TD Auto Finance LLC Represented By
Randall P Mroczynski
10:00 AM
FINANCIAL SERVICES VEHICLE TRUST
vs DEBTOR(S)
Docket 27
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Geoffrey Leslie Hegedus Represented By
Harout G Bouldoukian
Joint Debtor(s):
Toni Ann Hegedus Represented By
Harout G Bouldoukian
Movant(s):
Financial Services Vehicle Trust Represented By
Bret D. Allen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FINANCIAL SERVICES VEHICLE TRUST
vs DEBTOR(S)
Docket 13
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Barry Echols Jr. Represented By Sanaz S Bereliani
Joint Debtor(s):
Cayce Chanel Maxey Represented By Sanaz S Bereliani
Movant(s):
Financial Services Vehicle Trust Represented By
Bret D. Allen
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
CITYWIDE PROPERTY MANAGEMENT & CONSULTING INC.
vs DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Michael Kim Pro Se
Movant(s):
Citywide Property Management & Represented By
Joseph Cruz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 15
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
10:00 AM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Manlio Garcia Garcia Represented By Jessica E Rico
Movant(s):
Manlio Garcia Garcia Represented By Jessica E Rico
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 10
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Fredrick Visser Represented By William G Cort
Movant(s):
John Fredrick Visser Represented By William G Cort
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 9
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Martha Elena Rodriguez Represented By Barry E Borowitz
Movant(s):
Martha Elena Rodriguez Represented By Barry E Borowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 20
Tentative Ruling for 7/10/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 6/19/18, this court continued the matter at movant's request to allow time for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/19/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 24).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jacqueline Susanne Lawson Represented By Christopher J Langley
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NA vs
DEBTOR
Docket 45
Tentative Ruling for 7/10/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 6/19/18, this court continued the matter at the parties' request to allow time to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/19/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 50).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Xavier A Amaya Represented By Stephen S Smyth William J Smyth
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 85
Tentative Ruling for 7/10/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 5/29/18 and 4/10/18 hearings, this Court continued the matter for the debtors to continue their pursuit of a loan modification (see dkt. 88). There is no tentative ruling, but the parties should be prepared to address the status of this matter.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Continue to 6/26/18 at 10:00 a.m. to address the following issues. Appearances are not required on 5/29/18.
Reasons: At the 4/10/18 hearing, this Court continued this motion for the debtors to pursue a loan modification. The debtors have filed supplemental
10:00 AM
evidence of a trial modification notice (dkt. 88).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 87).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bradley Leo Richards Represented By
Michelle A Marchisotto Sundee M Teeple Cynthia L Gibson
Craig K Streed
Joint Debtor(s):
Guadalupe Richards Represented By
Michelle A Marchisotto Sundee M Teeple Cynthia L Gibson
10:00 AM
Movant(s):
Craig K Streed
DEUTSCHE BANK NATIONAL Represented By
Matthew R. Clark III Sean C Ferry
Keith Labell
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FORD MOTOR CREDIT COMPANY, LLC
vs DEBTOR
Docket 30
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rita Williams Minor Represented By Matthew D Resnik
Movant(s):
Ford Motor Credit Company LLC Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Cont'd hrg re: Motion for relief from stay [RP] fr. 6/26/18
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 23
Tentative Ruling for 7/10/18:
Deny the request for in rem relief (without prejudice to the other types of relief already granted at the 6/26/18 hearing) because the movant did not serve the motion papers as required by the tentative ruling for 6/26/18 (reproduced below). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Grant in part and continue in part to 7/10/18 at 10:00 a.m. as specified below. Appearances are not required on 6/26/18.
The automatic stay does not apply. This case has been dismissed, which
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terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2), and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower").
Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include, in addition to Mauro Hernandez (who was served), Maria C. Hernandez, who is described in the DOT as Mauro Hernandez' wife with a joint tenancy in the property.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed
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order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tomas Aguinaga Pro Se
Movant(s):
Deutsche Bank National Trust Co., Represented By
Alexander G Meissner
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
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Docket 111
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edward Rolando Carrillo Represented By Stuart R Simone Kahlil J McAlpin
Trustee(s):
Carolyn A Dye (TR) Represented By Christian T Kim James A Dumas Jr
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Docket 96
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edward Rolando Carrillo Represented By Stuart R Simone Kahlil J McAlpin
Trustee(s):
Carolyn A Dye (TR) Represented By Christian T Kim James A Dumas Jr
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Docket 97
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edward Rolando Carrillo Represented By Stuart R Simone Kahlil J McAlpin
Movant(s):
LEA Accountancy, LLP Pro Se
Trustee(s):
Carolyn A Dye (TR) Represented By Christian T Kim James A Dumas Jr
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Adv#: 2:17-01365 Naranjo v. Moisa et al
(2) Declaratory Relief
fr. 10/03/17, 11/17/17, 12/5/17, 4/17/18, 5/29/18
Docket 1
Tentative Ruling for 7/10/18:
Continue to 8/7/18 at 11:00 a.m. (no written status report required). Plaintiff is encouraged to file and serve a motion for a default judgment (the "Default Judgment Motion") for the same date and time.
Reasons: Plaintiff has obtained Clerk's defaults (dkt. 43, 44) on the amended complaint (dkt. 37) against the defendants Rosa Moisa and Edward Trevino Moisa. The tentative ruling is that any Default Judgment Motion must include the following.
Evidence. The Default Judgment Motion must be supported by a declaration showing evidence to support the assertion that the property description in the prayer for relief (dkt. 37 at PDF pp. 8:21-9:6) is correct (and the existing property descriptions are wrong (see dkt. 37, p.2 at para.3&5 & Ex.A&B at PDF pp. 12&15). For example, it appears that an authenticated copy of the recorded grant deed by which the defendant(s) acquired her (or their) interest(s) in the property might show the correct property description.
Service. Pursuant to Rule 55(b)(2) (Fed. R. Civ. P., incorporated by Rule 7055, Fed. R. Bankr. P.), the tentative ruling is that any Default Judgment Motion must be served only on Mr. Edward Trevino Moisa, not on the (deceased) defendant Ms. Rosa Moisa.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Grant the motion for an order allowing service of process via publication (dkt. 27), as supplemented (dkt. 34), for the reasons stated at the hearing on 12/5/17 (see dkt. 33). Continue the status conference in this adversary proceeding to 5/29/18 at 11:00 a.m. (no written status report required).
Appearances are not required on 4/17/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The tentative rulings are as follows.
No relief against unnamed defendants. At the initial status conference on 10/13/17, and in the tentative ruling for that status conference (reproduced below), this court questioned how quiet title relief could be granted against persons who are not named as defendants. The motion for a default judgment does not address that issue, and yet it seeks to quiet title as against all persons, whether or not they are named as defendants. The tentative ruling is to deny that relief.
No relief against decedent whose estate has not been properly served. In addition, the plaintiff appears to be seeking a default judgment against a decedent, Ms. Rosa Moisa, without having served anyone who could properly accept service for the decedent. In fact, in preparing for this hearing this
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court noticed that the plaintiff had the complaint served on herself as administrator of Mr. Moisa's esate (see adv. dkt. 5 at PDF p.4). How is that proper?
To make matters worse, it appears that she is not actually the administrator: she declares that she is currently seeking to be appointed as the administrator of the decedent's estate. See adv. dkt. 21, Plaintiff Decl., p.4, para. 14.
How could counsel for the debtor seek a default judgment on this foundation?
No relief against persons with whom there is no actual case or controversy. The plaintiff also seeks relief against Mr. Edward Trevino Moisa (the son of the decedent Ms. Moisa). The plaintiff alleges that there is an actual case or controversy involving him (and Ms. Moisa), but the plaintiff also alleges that after his mother transferred the property to Mr. Moisa he voluntarily transferred the subject property to the plaintiff via grant deed (dkt. 21, Plaintiff Decl., p.2, para. 5-6), and that Mr. Moisa "takes no position" and has not responded to the complaint (id. p.5:3). How is there an actual case or controversy involving Mr. Moisa (or his mother)?
Possible real party in interest? It is unclear from the filed papers, but the party against whom the plaintiff might really be seeking relief is the county of Los Angeles. She alleges that when she attempted to refinance the property "the Title Company for the future Lender noticed the discrepancy in the Grant Deeds (regarding Legal Description), that LA County changed the designation back to Rosa Moisa as the current owner." Id., p.4, para. 13 (emphasis added.) But it is not clear what this means - did LA County commit an error in indexing? Did it improperly alter the text of some grant deed? Or did LA County allegedly do something else to "change the designation" in some document or record?
Nor does the plaintiff point to any document that reflects any such confusion. It is not this court's role to scour the record to try to figure out what the plaintiff means.
Conclusion. This court is very empathetic to the plaintiff (the debtor), who alleges that she purchased the property when it had no equity, and made payments to save the property from foreclosure, and yet, although she has
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obtained this court's approval to refinance the property, she has been unable to do so because of some sort of discrepancy in the real estate records regarding her title to the property. But the papers filed by the debtor's counsel fail to explain the actual issue, and in any event appear to be wholly inadequate to address whatever the issue might be.
In addition, this court is very troubled that the filed papers appear to violate basic legal principles and ethical obligations. It appears that counsel for the debtor has sought a default judgment based on (i) the plaintiff/debtor serving herself, (ii) as the purported administrator of the estate of a decedent/defendant, even though she has not yet been appointed in that role, and (iii) with whom there does not appear to have been any actual case or controversy. This appears to be an attempted fraud on the court, intended to obtain a default judgment in the hope of binding other persons who have not been named as defendants.
Is there any reason why this court should not issue an order to show cause why sanctions should not be imposed? Meanwhile, what can be done to address whatever is the actual issue that is holding up the debtor's refinance of her real property?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Continue to 12/5/17 at 11:00 a.m. to heard concurrently with the motion for a default judgment. Appearances are not required on 11/7/17.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing
Tentative Ruling for 10/3/17:
Appearances required.
There is no tentative ruling, but the plaintiff should be prepared to address the exact nature of the relief sought, and how this court can grant relief as against persons who are not named as defendants.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Virginia Naranjo Represented By David R Chase
Defendant(s):
Rosa Moisa Pro Se
Edward Trevino Moisa Pro Se
Plaintiff(s):
Virginia Naranjo Represented By David R Chase
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 8
Appearances required by counsel for the debtor and by the debtor itself.
Current issues. This Court has reviewed the debtor's status report (dkt. 18) and other relevant documents.
Status Report. Debtor used an old form of status report. Judge Bason's current posted procedures require the use of local form F 2081- 1.1.C11.STATUS.RPT. Counsel is directed to review Judge Bason's posted procedures and to use the appropriate form status report in future.
Motion for relief from automatic stay. There is no tentative ruling, but the debtor and Crescent Capital Holding LLC should be prepared to address the issues raised in the motion (dkt. 17) and debtor's response (dkt. 21) regarding the Las Flores property, including the previous grant of "in rem" relief against the property, and whether the debtor has provided sufficient evidence of insurance on the property.
Deadlines/dates. This case was filed on 6/11/18.
Bar date: 9/14/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/28/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 9/18/18 at 1:00 p.m., brief status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Motiv8 Investments, LLC Represented By Kevin Tang
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Docket 13
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Status Report. Debtor used an old form of status report. Judge Bason's current posted procedures require the use of local form F 2081- 1.1.C11.STATUS.RPT. Counsel is directed to review Judge Bason's posted procedures and to use the appropriate form status report in future.
Budget motion (dkt. 13, 28). The tentative ruling is to continue the hearing on this motion to the same date and time as the continued status conference set forth below, with a deadline of 7/17/18 for the debtor to file a declaration and amended Schedules I and J addressing (i) the fact that the Texas property no longer should be included (because relief from the automatic stay was granted as to that property) and (ii) the issues raised by the United States Trustee's opposition (dkt. 28). Specifically, debtor does not list expenses for the Sandlake Avenue property in her Schedule J or a line item for her income taxes on self-employment earnings.
Deadlines/dates. This case was filed on 6/4/18.
Bar date: 10/12/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/7/18 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brenda Joyce Arlon Represented By
Anthony Obehi Egbase
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a budget for the use of the debtor's cash and postpetition income
Docket 21
Tentative Ruling for 7/10/18:
Please see the tentative ruling for the status conference (calendar no. 2, 7/10/18 at 1:00 p.m.).
Debtor(s):
Brenda Joyce Arlon Represented By
Anthony Obehi Egbase
Movant(s):
Brenda Joyce Arlon Represented By
Anthony Obehi Egbase
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Docket 153
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether the debtor is in compliance with all U.S. Trustee requirements.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rescue One Ambulance Represented By Michael Jay Berger
Movant(s):
United States Trustee (LA) Represented By Dare Law
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Docket 48
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues identified United States Trustee's motion (dkt. 48) and the debtor's opposition (dkt. 50).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Samir Mourad Represented By Krystina T Tran
Movant(s):
United States Trustee (LA) Represented By Dare Law
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Docket 292
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
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Docket 294
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
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Docket 296
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
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Docket 332
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
The Bird's Nest Represented By Howard Steinberg Robert Mockler
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Docket 87
Please see the tentative ruling for the status conference (7/10/18 at 1:00 p.m., calendar no. 11).
Debtor(s):
Steve O Chong Represented By Lionel E Giron Kevin Tang
Joint Debtor(s):
Edwina Theresa Chong Represented By Lionel E Giron Kevin Tang
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Docket 1
Tentative Ruling for 7/10/18:
Appearances required.
Proposed order: If this Court is persuaded to adopt the following tentative ruling - i.e. to approve the Amended Disclosure Statement on a final basis and confirm the debtors' Amended Plan - then the debtors are directed to lodge via LOU, within 7 days after the hearing date, (1) a proposed order approving the Amended Disclosure Statement and (2) a proposed order confirming the Amended Plan, and attach to the latter proposed order a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Current Issues. This court has reviewed debtor’s Amended Plan (dkt. 87), Amended Disclosure Statement (dkt. 88), Ballot Summary (dkt. 94), and other relevant pleadings.
Debtors Amended Plan requires cramdown pursuant to 1129(b). The debtors acknowledge that their amended plan has five impaired classes: 2B, 2C, 2D, 2E, 4A. To avoid cramdown, all five classes must vote to accept the amended plan (11 U.S. C. 1129(a)(8)). Based on a review of the debtors’ Ballot Summary (dkt. 94), the votes were as follows:
Classes that voted to accept the AmPl: 2D, 2E
Classes that voted to reject the AmPl: 4A
Classes that did not vote and are deemed to reject the AmPl: 2B, 2C
Therefore, the debtors’ plan can only be confirmed if it satisfies the cramdown requirements of 1129(b) as to Classes 2B, 2C, and 4A.
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The Amended Plan is "fair and equitable" and does not "unfairly
discriminate" with respect to Classes 2B, 2C, and 4A. Section 1129(b)(1) states, in relevant part "…if all of the applicable requirements of subsection
of this section other than paragraph (8) [acceptance by every impaired, voting class] are met with respect to a plan, the court, on request of the proponent of the plan, shall confirm the plan notwithstanding the requirements of such paragraph if the plan does not discriminate unfairly, and is fair and equitable, with respect to each class of claims or interests that is impaired under, and has not accepted, the plan." (Emphasis added.)
Secured Creditor Classes 2B and 2C. First, the debtors appropriately classified their secured creditors into separate categories, and have not otherwise discriminated unfairly with respect to Classes 2B and 2C. Second, the debtors propose to pay Class 2B (First Tennessee) 100% of its claim for a period of 360 months with 5% apr and Class 2C (IRS) 100% of its claim for a period of 60 months with 4% apr. Neither creditor has objected to the interest rate on the basis that it does not provide present value and both creditors will retain their liens and receive deferred cash payments. Therefore, the Amended Plan satisfies 11 USC 1129(b)(2)(A)(i)(I) and (II). In addition, Classes 2B and 2C will receive payment in full, so the absolute priority rule (11 U.S.C. 1129(b)(2)(B)(ii)) is satisfied with respect to these classes. Finally, in all other respects the Amended Plan appears to be fair and equitable with respect to these classes. Therefore, the Amended Plan satisfies the requirements for cramdown with respect to Classes 2A and 2B.
General Unsecured Creditors ("GUCs") Class 4A. The debtors propose to pay GUCs 4.1% on their claims for a period of 60 months with no interest. Although two GUCs have voted against the Amended Plan, no objection to confirmation has been filed.
Under Article I.B. of the Amended Plan the debtors' interests are in Class 5 and their rights are unchanged. Under Article V.B. of the Amended Plan all property of the estate will be vested in the debtors.
In other words, the Amended Plan proposes that the debtors will retain their exempt property, and secured creditors will be paid in full with interest, while GUCs will receive 4.1% of their claims. Debtors’ liquidation analysis shows, however, that GUCs would receive a 0% distribution if the case were converted to a case under chapter 7.
The first question is whether the Amended Plan discriminates unfairly as between GUCs and other classes. As for secured creditor classes, this
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Court notes that Congress has provided for certain treatment of secured creditors that is superior to the treatment of unsecured creditors, so the fact that the secured claims are being treated better than GUCs under the Amended Plan is not unfair discrimination.
As for the debtors' retention of their home and certain personal property, this Court notes that Congress has provided for retention of exempt property in both liquidation and reorganization chapters of the Bankruptcy Code, so retention of exempt property is not unfair discrimination.
That leaves the question whether the Amended Plan is fair and equitable with respect to GUCs. The statute defines provides, in relevant part:
(2) ... the condition that a plan be fair and equitable with respect to a class includes the following requirements: ...
(B) With respect to a class of unsecured claims— ...
(ii) the holder of any claim or interest that is junior to the claims of such class [i.e., the debtors' interests in Class 5] will not receive or retain under the plan on account of such junior claim or interest any property, except that in a case in which the debtor is an individual, the debtor may retain property included in the estate under section 1115 [Emphasis added.]
The two emphasized portions of the above-quoted language establish two exceptions or corrolaries to the absolute priority rule. First, if the debtors receive or retain property in exchange for "new value," rather than in exchange for their existing net equity interests in their property, then there is no violation of the absolute priority rule. Second, the debtors may retain property that becomes "included in the estate" by virtue of 11 U.S.C. 1115, which includes property acquired postpetition (as well as postpetition earnings of individuals) - i.e., the debtors' postpetition pension receipts.
Because the Amended Plan proposes for the debtors to contribute
$50/month for 60 months (representing a 4.1% distribution for GUCs) from debtors’ pension income, and because GUCs would receive a 0% distribution in chapter 7, the tentative ruling is that the Amended Plan satisfies the requirements of the absolute priority rule.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
AmPlan/AmDisclosure Statement* (dkt. 88, 89): The tentative ruling
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is to approve the amended disclosure statement on a final basis and confirm debtors’ amended plan pursuant to 1129(b).
Post Confirmation status conference: 9/18/18 at 1:00 p.m. Brief
written post confirmation status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Court has reviewed the debtors' status report (dkt. 85), the Amended Plan (dkt. 80), Amended Disclosure Statement (dkt. 81), and other relevant pleadings.
Exhibit F (Discl. Stmnt., dkt. 81, at PDF p.12). This exhibit continues to contain the same errors identified in this court's tentative ruling for 10/3/17: line "1" lists general unsecured claims of $64,716, the source for which is listed as dkt.10, plus another $7,970.39 in line "8" from a "Continuation Sheet"; but dkt.10 is not a listing of creditors (it is a notice of commencement of this case and the meeting of creditors), the only bankruptcy Schedule E/F that appears on the docket (dkt.1) lists general unsecured claims of $64,672.60, and there is no "Continuation Sheet" attached.
Exhibit C (Discl. Stmnt., dkt. 81, at PDF p.7). This document references "Exhibit I" - apparently meaning bankruptcy Schedules I & J (dkt.1)
- as the source of the gross income and expenses used to calculate the debtor's cash flow. But there are several problems with this approach.
First, when using bankruptcy Schedules I and J there is a danger of
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double-counting: bankruptcy Schedule J includes debt payments on lines 17 and 20 - namely $474.10/mo for vehicle1, $500/mo for vehicle2, $900/mo for a home equity loan on rental property, and $1,219.99/mo for the mortgage on rental property - but the Plan includes payments of those same debts: Classes 2D and 2E are payments of vehicle loans, and Classes 2A and 2B are payments of loans secured by real property (in other words, the Plan pays the same debts again).
Second, when using bankruptcy Schedules I&J a plan proponent is supposed to use Exhibit C-1 to the Disclosure Statement. That spreadsheet includes lines to make adjustments to eliminate the double-counting problem.
Third, bankruptcy Schedule I (dkt.1), line 8a, includes an instruction to "Attach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." The debtors have failed to provide any such statements, and as a result there is inadequate disclosure of the cash flow in support of the Disclosure Statement. It is true that the debtors have attached such a statement as part of their budget motion in the form of a spreadsheet (dkt. 20, at PDF p.8), but that spreadsheet includes debt payment (so, again, it double- counts payments on such debt) and in any event no such spreadsheet is attached to the Disclosure Statement (or incorporated by reference).
Fourth, the debtor's status report (dkt. 85) suggests that the finances described in bankruptcy Schedules I & J (dkt. 1) and the budget motion (dkt. 20) are all out of date. Apparently the debtors have moved from their prior residence into their former rental property and they are renting out their former residence, and they no longer have the costs of a storage locker. The debtors should have filed the local form statement of postpetition income and expenses (with statements showing gross income, expenses, and net income from their current rental property as an exhibit). Then they should attach a copy of that form and exhibit to their Disclosure Statement so as to provide accurate, current information about their cash flow.
(d) Effective date. The proposed effective date of 6/1/18 does not leave adequate time (i) to file a further amended plan and further amended disclosure statement; (ii) to have a further status conference to review those documents; and (iii) to disseminate the amended plan and amended disclosure statement for voting and hold a confirmation hearing. The debtors are directed to modify the effective date to 9/1/18.
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Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
AmPlan/AmDisclosure Statement* (dkt. 80, 81): The tentative ruling is to set a deadline of 5/8/18 to file (NOT SERVE - except on the U.S. Trustee) a further amended plan and further amended disclosure statement to address the foregoing issues.
Continued status conference: 5/22/18 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Amended Plan, Amended Disclosure Statement: Counsel for the debtors should be prepared to address the status of the debtors' efforts to reach agreements with their secured creditors.
Monthly Operating Reports ("MORs"). Counsel for the debtor must explain at the hearing the enties reflecting transfers of $1,000 and $8,300 to "cash" "due to bk dismissal" listed in MOR#9 (dkt.76 at PDF pp.3&6, entries for 1/23/18 & 1/17/18). Has the debtor properly accounted for use of the cash while this case was dismissed?
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
AmPlan/AmDisclosure Statement*: This court has set a hard
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deadline of 3/30/18 to file an amended plan and amended disclosure statement
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required. If this court is persuaded to vacate the dismissal (see calendar No. 3, 1/30/18 at 1:00 p.m.), the tentative ruling will be to continue the status conference to March 6, 2018 at 1:00 p.m. and set a hard deadline of March 30, 2018 for the debtors to file an amended plan and disclosure statement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement: At the hearing on 12/5/17, this court
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cautioned debtors' counsel about the possibility of dismissing this case for failure to prosecute. Although the debtors have reached an agreement with Sheffield Financial (dkt. 51, 53), it does not appear that the debtors have reached agreements with any of their other secured creditors (see dkt. 45, Ex.H, at PDF p.14, Endnotes 2B-2D), despite this case having been pending for nearly eight months. As a result, counsel for the debtor should address why this court should not dismiss this case.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: If this case is not dismissed, this court will set a hard deadline for the debtors to negotiate agreements with their secured creditors regarding plan treatment.
Continued status conference: If this case is not dismissed, this court will set a date for a continued status conference.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement: The tentative ruling is not to impose at this time a deadline for filing amended documents, but to caution debtor's counsel that if this case is not adequately prosecuted then it may be dismissed.
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Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: This court anticipates that at the continued status conference (set forth below) this court will set a new, hard deadline shortly thereafter for filing revised drafts of the plan and disclosure statement.
Continued status conference: 1/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan/Disclosure Statement (dkt. 44, 45). There is a blank page in the plan that should be deleted (dkt. 44 at PDF p.11).
Exhibit F (dkt. 45 at PDF p.12) appears to contain some errors: line "1" lists general unsecured claims of $64,716, the source for which is listed as dkt.10, plus another $7,970.39 in line "8" from a "Continuation Sheet"; but dkt.10 is not a listing of creditors (it is a notice of commencement of this case and the meeting of creditors), the only bankruptcy Schedule E/F that appears on the docket (dkt.1) lists general unsecured claims of $64,672.60, and there is no "Continuation Sheet" attached.
The debtor discloses (dkt. 45, Ex.H, at PDF p.14, Endnotes 2B-2E) that agreements have yet to be reached with various secured creditors; and
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therefore it appears appropriate to defer any solicitation of votes. The debtor's counsel should be prepared to address how long it is expected to take before agreements are reached or unresolved disputes are ready for presentation to this court for decision.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement (dkt. 77, 76)*: 11/14/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions per the above tentative ruling and any matters discussed at the status conference.
Continued status conference: 12/5/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Orders. The debtors' counsel should be prepared to address why certain orders have not been lodged, namely, (i) the order on the debtors' motion to value their personal property (dkt. 27), which motion was granted on 7/11/17, and (ii) the order on the debtors' application to employ general bankruptcy counsel (dkt. 22).
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (timely served, dkt. 26).
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a
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later time).
Continued status conference: 10/3/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Grant the budget motion and continue the status conference as set forth below. Appearances are not required on 6/20/17.
Current issues.
Budget motion. This court mistakenly ruled at the status conference on 6/13/17 that the budget motion would be granted on a final basis, not realizing that the 6/13/17 hearing on that motion had been vacated because an amended motion had been filed and set for hearing on this 6/20/17 date. See dkt. 16, 20. Notwithstanding that error, no opposition has been filed to the budget motion, and the tentative ruling is to issue an order after this hearing granting the amended motion on a final basis (the debtor is directed to lodge a proposed order within seven days after this hearing date).
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (dkt. 23) - to be served by 8/20/17
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/22/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative
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rulings".
Tentative Ruling for 6/13/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves
but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion. The debtors' amended budget motion filed on 6/1/17 (dkt. 20) appears to have only partially cured the defects pointed out by the U.S. Trustee in its opposition (dkt. 19) to the initial budget motion (dkt. 16). First, the debtor and/or spouse apparently has income from a property or business but has failed to provide a breakdown of gross receipts, ordinary and necessary business expenses, and calculation of the resulting monthly net income. See dkt. 20 at PDF p.7 (bankruptcy schedule "I" line 8a).
Second, the budget motion includes both (a) bankruptcy schedules "I" and "J" and (b) a spreadsheet showing what appears to be largely or entirely duplicative data. Which one controls (or are both the same)?
Third, the notice of the amended motion incorrectly provides that oppositions are due 14 days prior to the hearing on the motion, although the motion was set on shortened notice pursuant to this court's posted Procedures. For this reason, this court intends to hear oppositions to the amended budget motion at the hearing on 6/13/17.
The tentative ruling is to grant the budget motion on an interim basis, based on the proposed budget spreadsheet (not bankruptcy schedules "I" and "J"), with a deadline of 6/14/17 to file a supplemental declaration providing a thorough breakdown of gross revenues, expenses and calculation of net income for each property/business, and with a continued hearing on 6/20/17 at 1:00 p.m.
Deadlines/dates. This case was filed on 5/10/17.
Bar date: 8/31/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/15/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
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U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/20/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Steve O Chong Represented By Lionel E Giron Kevin Tang
Joint Debtor(s):
Edwina Theresa Chong Represented By Lionel E Giron Kevin Tang
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Docket 7
Tentative Ruling for 7/10/18:
Continue to 8/14/18 at 1:00 p.m. Appearances are not required on 7/10/18.
Current issues.
Budget motion (dkt. 17, 41, 46, 50, 56). This Court approved the debtor's budget on an interim basis (dkt. 46) and orally on a final basis at the hearing on 6/12/18, but no proposed final order was lodged, and since that time the debtor has filed amended bankruptcy Schedules I&J (dkt. 56). The tentative ruling is to deem the budget motion to be amended by those latest amended Schedules I&J and approve the budget as so amended on a final basis.
Proposed order: The debtors are directed to lodge a proposed order granting the motion via LOU, within 7 days after the hearing date, and a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Other issues. This Court has reviewed the debtor's filed Status Report (dkt. 54). This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: Continue to the date set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 17, 29, 41). Grant the budget motion on a final basis (i) as deemed amended by the latest bankruptcy Schedules I and J (dkt. 41) and (ii) subject to a requirement that, no later than 6/19/18, the debtor must file a declaration showing how it is reasonable to estimate self employment taxes of only $100 per month (see dkt. 41, Sch.J, line 16) or, alternatively, file a declaration establishing a higher dollar amount and lodge a proposed order amending the approved budget accordingly.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and include a provision that the budget is deemed amended by dkt. 41. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 7/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Amended Schedule I (dkt. 26). Bankruptcy Schedule I, paragraph 8a, requires a separate statement for any rental property showing gross receipts, ordinary and necessary expenses, and net income. The debtor has not complied. Why not?
Budget motion (dkt. 17, 29). Nothwithstanding the foregoing, this Court has reviewed the cash collateral motion (dkt. 28), which appears to set forth the gross receipts, expenses, and net income of the subject property. Based on the presumption that this is included in the budget for which the debtor seeks approval, the tentative ruling is to grant the budget motion as amended (dkt. 29), on an interim basis, subject to a final hearing at the same date and time as the continued status conference set froth below. By no later than 6/8/18, the debtor must (i) correct the above-referenced omission from bankruptcy Schedule I and the budget motion, (ii) provide notice of the final hearing on this motion via U.S. Mail to all parties in interest, and (iii) file a proof of service.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/29/18 using the forms
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required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron
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Docket 6
Tentative Ruling for 7/10/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Court has reviewed the debtor's status report (dkt. 54) and other relevant pleadings.
Plan/Disclosure Statement (dkt. 51, 52). It appears that the differences between the stipulation with JP Morgan Chase Bank, NA (dkt. 55, 58) and the proposed plan (dkt. 52, Ex.A, Class 2B) are immaterial (a very minor increase in the claim amount and monthly amortizing payment amount). This court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 24, 29).
Plan/Disclosure Statement (dkt. 51, 52)*: 7/17/18 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 9/4/18 at 1:00 p.m. (no written Status Report required).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash Collateral Motion (dkt. 12). The tentative ruling is to grant the motion on a final basis and authorize the use of cash collateral as modified by the amended budget (dkt. 35).
Budget Motion (dkt 13). The tentative ruling is to grant the motion on a final basis as modified by the amended budget (dkt. 35) (see also dkt. 18, 21, 22, 28).
Proposed Orders. The debtor is directed to serve and lodge proposed orders on the foregoing motions via this court's "LOU" system within 7 days after the hearing date.
Status Report. This Court's prior tentative ruling set a deadline of 4/17/18 to file a brief status report. As of the preparation of this tentative ruling, the debtor has not filed a status report. Why not?
Untimely Filings.
This Court directed the debtor to serve Chase with the Budget Motion and Cash Collateral Motion by 3/22/18, but the Debtor's proof of service reflects service on 3/23/18.
This Court also directed the debtor to file a supplemental declaration in support of the Budget Motion by 3/30/18, but the Debtor did not file her declaration until 4/5/18.
The debtor's counsel is cautioned that continued failure to abide by the deadlines this court sets may result in adverse consequences.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 24, 29).
Plan/Disclosure Statement*: file by 6/12/18 using the forms
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required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 7/10/18 at 1:00 p.m., brief status report due 6/26/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor and by the debtor herself.
Current issues.
Cash Collateral Motion (dkt. 12). See the separate tentative ruling for that motion (calendar no. 4, 3/20/18 at 1:00 p.m.).
Budget Motion (dkt 13).
Service is inadequate. The proof of service (dkt. 13, pp. 5-6) fails to comply with the rules for service. Chase was not served via certified mail or to the attention of an officer as required by Rule 7004(b)(3) & (h) (Fed.
R. Bankr. P.) (incorporated by Rule 9014(b), Fed. R. Bankr. P.).
Unexplained Inconsistencies between Schedule J & Proposed Budget. The debtor should be prepared to address the issues raised in the United States Trustee's opposition (dkt.18).
Notice of continued hearings. If the court grants the budget and
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cash collateral motions on an interim basis, the tentative is to set a deadline of 4/3/18 for the debtor to file and serve a notice of the final hearing on both motions, and to set the same date for the debtor to file any supplement or amendments to such motions, with deadlines of 4/10/18 for any opposition and 4/17/18 for any reply.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 6/12/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/1/18 at 1:00 p.m. (to be concurrent with the hearings on cash collateral and budget motions), brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
1:00 PM
5/1/18
Docket 31
Tentative Ruling for 7/10/18:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 306). Appearances are not required on 7/10/18.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 133, 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 11/6/18 at 1:00 p.m., brief status report due 10/23/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required.
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Current issues. This Court has reviewed the Chapter 11 Trustee's status report (dkt. 283).
Surcharge motion under 11 U.S.C. 506(c) (dkt. 239). The Trustee and Wellgen have entered into a Stipulation resolving the motion (dkt. 281). This Court has issued an order setting this matter for hearing. The parties are directed to address the issues raised in that order. In addition, the parties are directed to address what will happen if there are any proceeds in excess of both (1) the maximum amount distributed to Wellgen (para. 9 of the Stipulation) and (2) the maximum amount distributed to the Trustee and his counsel (para. 10 of the Stipulation).
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 133, 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 7/10/18 at 1:00 p.m., brief status report due 6/26/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on
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8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 229). Appearances are not required on 2/27/18.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 153). Appearances are not required on 12/12/17.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 2/27/18 at 1:00 p.m., brief status report due 2/13/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Adopt the trustee's recommendation regarding re-issuance of a notice of case commencement, with a new bar date of December 31, 2017. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/19/17:
Appearances required.
Current issues.
Order for relief. This case was commenced as an involuntary chapter 7, and thereafter the debtor filed a motion (dkt. 19) to convert this case to chapter 11, which this court treated at a hearing on 8/8/17 as a consent to an order for relief conditioned on such converstion. This court orally ordered relief and granted the motion to convert to chapter 11, and although the latter order was reduced to writing (dkt. 25) the former was not. The tentative ruling is to direct the Chapter 11 Trustee to prepare and lodge a written order, memorializing that the oral order for relief was effective on 8/8/17. The parties should be prepared to address whether that written order should modify any deadlines that otherwise would apply (see next paragraph), notwithstanding that all parties in interest appear to have been present in person or on the telephone at that 8/8/17 hearing.
Lack of information. The Chapter 11 Trustee's status report (dkt. 79) indicates that the debtor has yet to provide information on numerous issues, notwithstanding Rule 1007(a)(2), (b) and (c). The docket does not reflect that the debtor has filed bankruptcy schedules, a statement of financial affairs, or other information, or filed any motion for extention of time. What is the current status, and what additional action may be appropriate?
Clients. This court has approved a client transfer protocol (dkt. 83). What is the status of those transfers?
Reconversion? The debtor's status report (dkt. 80, at PDF p.3:4- 21) suggests that, although the debtor and other parties in interest stipulated (dkt. 38) to the appointment of a chapter 11 trustee, and this court approved that stipulation (dkt. 42), nevertheless this case is essentially being operated as a chapter 7 liquidation and should be converted back to chapter 7. What are the positions of parties in interest on that issue?
Joint administration? Should this case be jointly administered (not procedurally consolidated) with the case of Maximum Legal (California), LLP (Case No. 2:17-bk-18433-NB)?
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Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: TBD after bankruptcy schedules are filed.
Plan/Disclosure Statement*: Do not file or serve until further order of this court.
Continued status conference: 10/17/17 at 1:00 p.m., brief status report due 10/10/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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fr. 3/3/15, 3/31/15, 4/28/15, 5/26/15, 6/9/15, 7/7/15, 07/28/15, 9/1/15, 9/22/15, 11/17/15, 12/15/15,
1/19/16, 2/23/16, 3/22/16, 5/31/16, 7/19/16, 9/27/16,
11/29/16, 1/10/17, 4/25/17, 6/20/17, 10/17/17, 1/30/18,
4/10/18, 5/8/18, 6/7/18
Docket 9
Tentative Ruling for 7/10/18:
Continue to 8/7/18 at 1:00 p.m. Appearances are not required on 7/10/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 322) and Status Report (dkt. 324). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Continue to 7/10/18 at 1:00 p.m. Appearances are not required on 6/7/18.
This Court has reviewed the debtor's latest filed documents regarding its cash flow and sale of property (dkt. 316, 317, 319, 320). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Continue to 6/7/18 at 1:00 p.m. Appearances are not required on 5/8/18.
This Court has reviewed the debtor's status report (dkt. 313), notice of pending sale for the Broadway property (dkt. 314), and latest monthly operating report (dkt. 312). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 1:00 p.m. Appearances are not required on 4/10/18.
This court has reviewed the debtor's status report (dkt. 311) and monthly operating reports (dkt. 309, 310), and this court is not aware of other issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's status report (dkt. 304) and the notice (dkt. 307) filed by Bayview Loan Servicing, LLC ("Bayview"). The parties should be prepared to address the issues raised by those papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's post-confirmation status report (dkt. 298) and has no issues to raise sua sponte at this time. The tentative ruling is to continue this status conference to 1/30/18 at 1:00 p.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 10/17/17 at 1:00 p.m. in view of the debtors' status report (dkt. 292). Appearances are not required on 6/20/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
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Tentative Ruling for 4/25/17:
Continue to 6/20/17 at 2:00 p.m., to provide the debtors with time to seek entry of a final decree in this case, or such other remedies as may be necessary or appropriate, in view of the confirmed Joint Chapter 11 Plan (dkt. 270) and the unopposed motions to approve the compromise with Butler Capital (dkt. 277-80). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
[PRE-CONFIRMATION TENTATIVE RULINGS OMITTED]
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
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8/15/17, 11/14/17, 02/13/18
Docket 6
Tentative Ruling for 7/10/18:
Continue as set forth below. Appearances are not required on 7/10/18.
Current Issues. This Court has reviewed debtor's status report (dkt. 154, 156) and other relevant pleadings in this case. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. Continue to 9/18/18 at 1:00 p.m. (no written status report required; and will go off calendar if a final decree has been issued before that time).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 2/13/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference. The tentative ruling is to set a continued status conference for 7/10/18 at 1:00 p.m.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Continue to 2/13/18 at 1:00 p.m. in view of the debtor's post-confirmation status report (dkt. 142). Appearances are not required on 11/14/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 8/15/17:
Appearances required. The debtor's counsel should be prepared to address the issues set forth below.
Proposed order: If this court is persuaded to adopt this tentative ruling, then counsel for the debtor is directed to serve and lodge proposed orders (a) approving the disclosure statement (dkt. 101) on a final basis and (b) confirming the plan (dkt. 102), all as amended by the stipulation with class 2A (dkt. 127, 128). Those preposed orders must be lodged via LOU within 7 days after the hearing date.
Ballot Summary. The debtor's ballot summary (dkt. 131) appears to be inaccurate and internally inconsistent. Although the ballots and stipulation attached to the ballot summary show acceptance by 100% in both dollar amount and number of the claims actually voted or deemed to have been voted in classes 2A, 2B and 4A, and no vote by Class 2C, the ballot summary makes assertions that are not consistent with those ballots, namely:
Cramdown: The ballot summary asserts that the debtor is not requesting cramdown (dkt. 131, item 3), even though the lack of an affirmative vote in class 2C means that the debtor does not satisfy 11 U.S.C.
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1129(a)(8) and therefore must seek cramdown under 11 U.S.C. 1129(b);
Accepting classes: The ballot summary asserts that only class 4A has voted to accept the plan (dkt. 131, item 6), even though classes 2A and 2B have also accepted the plan; and
Page 2 of the Ballot Summary: The chart on page 2 of the ballot summary (dkt. 131, p.2, top line of chart) fails to show that Class 2A has accepted the plan by 100% in number of claims deemed to have been voted (not just 100% in amount). In addition, it would have been helpful if the ballot summary's "Comments" following that chart had explained that (i) Portfolio Recovery Associates is Class 2C (even though it is listed as LA County Tax Collector in the Plan), (ii) U.S. Bank is Class 2A (even though it is listed as Wells Fargo in the Plan), and (iii) Class 2A is deemed to have voted in favor of the plan under its court-approved stipulation, even though it did not actually cast a ballot. (If any of the foregoing is incorret then counsel for the debtor must correct those issues at the hearing.)
Status report
The debtor's status report (dkt. 130) misleadingly asserts that this court's order (dkt. 106) previously approved the disclosure statement (dkt. 101), whereas in fact this court only granted preliminary approval for purposes of this combined hearing on whether to approve the disclosure statement (dkt. 101) and confirm the plan (dkt. 102).
Confirmation. Notwithstanding the foregoing, it appears that the debtor's disclosure statement (dkt. 101) should be approved, and that the chapter 11 plan (dkt. 102), as amended by the debtor's stipulation with the holder of the class 2A claim (dkt. 127, 128), has met the requirements for confirmation under 11 U.S.C. 1129(a) & (b).
Correction. This court notes that the tentative ruling for 6/20/17 (reproduced below) was in error in asserting that "[at] the status conference on 5/23/17 this court set a deadline of 6/6/17 to file an amended plan and disclosure statement." In fact, this court was persuaded at that status conference not to impose that deadline.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for
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disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 8/8/17 at 1:00 p.m. (without the need for any written status report), but impose sanctions of $200 on counsel for the debtor, for the reasons set forth below. Appearances are not required on 6/20/17.
At the status conference on 5/23/17 this court set a deadline of 6/6/17 to file an amended plan and disclosure statement. On 6/15/17, after this court had already prepared a tentative ruling for this status conference, counsel for the debtor filed a stipulation (dkt. 117) and lodged a proposed order for yet another continuance of the confirmation hearing. At no point did counsel telephone chambers to suggest that counsel expected or was attempting to arrange for such a continuance. Moreover, as set forth in the tentative rulings reproduced below, this case has a long history of missed deadlines, last minute filings, and deficient documents.
This court recognizes that to a large extent counsel cannot control delays by a debtor and debtor in possession, and not infrequently a debtor is simply incapable of meeting all of the debtor's obligations. Nevertheless, this court has noted that counsel of record in this case has a pattern, in this and other cases (e.g., In re Barragan, 2:15-bk-29156-NB), of filing late and inadequate documents, and that pattern is not matched by the vast majority of other counsel who appear before this court. All of that strongly suggests that counsel bears some responsibility for those deficiencies, and that imposes substantial burdens on this court, the U.S. Trustee, and any other parties in interest who may be monitoring or involved in such bankruptcy cases. The tentative ruling is that this warrants sanctions under this court's inherent powers and 11 U.S.C. 105. Counsel is also cautioned that this court anticipates issuing similar or increased sanctions if this pattern continues in other cases in future.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/23/17:
Appearances required by counsel for the debtor, but telephonic appearances
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are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The ballot summary was due 5/16/17 but was not filed until 5/22/17 at 4:12 p.m. In addition, it is internally inconsistent. What remedies are appropriate?
The plan (dkt. 102) has not been accepted by any class. This is the debtor's second bankruptcy case, and it has been pending for over a year. The debtor's lack of progress for that long a period of time suggests a willful delay. Should this court dismiss or convert this case? Should this court impose a bar against being a debtor in bankruptcy for the third time in a row?
Deadlines/dates. This case was filed on 4/20/16. If this case is not dismissed or converted, the tentative ruling is to hold a continued status conference on 6/20/17 at 1:00 p.m. with a deadline of 6/6/17 to file (but NOT serve) yet another amended plan and disclosure statement.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/23/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 4/11/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
UST compliance and adequate protection payments. What is the status?
Plan (dkt. 101) and Disclosure Statement (dkt. 102). 4/14/17 deadline to lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the
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same time as the continued status conference.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: See above.
Continued status conference: 5/23/17 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/28/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
U.S. Trustee notice of non-compliance. Has the debtor cured the reporting delinquency noted by the U.S. Trustee regarding lack of insurance (dkt. 94)?
Adequate protection payments. At the hearing on 1/10/17 counsel for the debtor assured this court that the debtor had cured the postpetition delinquency in adequate protection payments. But the monthly operating report for January 2017 (dkt. 95, filed 2/7/17, at p.4) continues to list 4 missed payments for a total of $6,972 delinquency. What was the basis for counsel's misrepresentation to this court? Should this court require counsel and the debtor to testify on that issue, and on the prospects for future income, before this court can find that the plan is feasible (11 U.S.C. 1129(a)(11))? Should this misrepresentation have any other consequences?
Plan (dkt. 82) and Disclosure Statement (dkt. 81). The debtor's ballot summary was due to be filed no later than 2/21/17 (dkt. 89). Instead the debtor's counsel has filed a declaration (dkt. 96) asserting that a ballot in favor of the plan has been received by class "6b," even though no such class is listed in the plan (see dkt. 82, Ex.A), and requesting more time to receive ballots from classes 2a and 2b, even though the deadline for ballots has
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passed. The parties should be prepared to address how best to proceed in these circumstances.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement (dkt. 82, 81): See above.
Continued status conference: 4/11/17 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/28/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Payments to secured creditor Wells Fargo. The debtor's November 2016 MOR reflects that the debtor has not made 4 monthly payments to secured creditor Wells Fargo. See dkt. 84, PDF p. 7. Is that accurate, or did the debtor intend to state that those payments were made?
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement (dkt. 82, 81): The tentative ruling is to set the following deadlines: 1/17/17 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; and 2/28/17 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and
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confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at
least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 2/28/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/8/16:
Appearances required by counsel for the debtor, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Amended Chapter 11 Plan and Disclosure Statement (dkt. 74, 75). There are issues with these documents which this Bankruptcy Court will review orally at the hearing.
Monthly operating reports. The debtor's court approved budget (dkt. 19) and the budget attached to her amended chapter 11 disclosure statement (dkt. 74, PDF p. 13) show various typical monthly expenses such as transportation costs, utilities, and food. The expenses included in her budgets submitted to this court are either not reflected in her MORs for August and September 2016 (dkt. 65 and 73, respectively) or are reflected, but in much smaller amounts than budgeted. Is the debtor reporting all of her monthly expenses in her MORs? If not, why not?
Additionally, the MORs appear to reflect that the debtor is receiving less than her budgeted monthly income ($1,800/mo.) from her job as a real estate professional. In August 2016, the debtor reported receipts of $970.01;
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in September 2016, receipts of $1,000.
Based on the reporting in the debtor's two most recent MORs, this court is concerned that the debtor may not have sufficient disposable income with which to fund her proposed chapter 11 plan.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: Deadline of 12/6/16 to file (but NOT serve) an amended draft plan and disclosure statement if sufficient issues have been resolved to finalize those draft documents (see above).
Continued status conference: 1/10/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/13/16:
Appearances required by counsel for the debtor, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Chapter 11 Plan and Disclosure Statement (dkt. 59, 58). There are numerous issues with these documents, which this Bankruptcy Court will review orally at the hearing.
Orders on budget and cash collateral motions. On July 19, 2016, this court held continued hearings on the debtor's motion for use of cash collateral (dkt. 18) and budget motion (dkt. 19). The motions were granted on a final basis, and the court's adopted tentative ruling directed the debtor to lodge proposed orders on those motions within seven days of the hearing date. This court has reviewed the case docket and its pending lodged orders, and it appears no such orders have been lodged.
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Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: Deadline of 10/11/16 to file (but NOT serve) an amended draft plan and disclosure statement if sufficient issues have been resolved to finalize those draft documents (see above).
Continued status conference: 11/8/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/19/16:
Appearances are not required on 7/19/16.
Current issues.
Cash collateral motion (dkt. 18). Grant on a final basis, on the same terms set forth in this court's order granting interim use of cash collateral (dkt. 37).
Budget motion (dkt. 19). Grant on a final basis.
The debtor must lodge proposed orders on each of the foregoing motions within seven days.
Deadlines/dates. This case was filed on 4/20/16
Bar date: Bar date: 7/29/16 (timely served, dkt. 39).
Plan/Disclosure Statement*: file by 8/19/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for
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such objections are established).
Continued status conference: 9/13/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/31/16:
Appearances required by counsel for the debtor and by the debtor(s) themselves
Current issues. This Court has reviewed the debtor's status report (dkt. 23).
Prior failed case. The debtor's prior case (no. 2:14-bk-14065-NB) was a chapter 13 case that was dismissed because of plan infeasibility due to the objections by Wells Fargo, and claims by the IRS, FTB, and L.A. County Tax Collector.
Debtor's real property
Inconsistent rental income amount. This Court notes that the debtor's amended schedule G reflects a monthly rental of $2,200 (dkt. 13, p.10), which was originally listed as $1,500 per month (dkt. 1, p.36). However, the debtor's original schedule I originally listed the debtor's net income from rental property as $2,400 (dkt. 1, p.39). The debtor's amended schedule I now lists net income from rental property as $2,200 (dkt. 13, p.12). Although the rental income now appears to be consistent at $2,200, and schedule G reflects the same lessee, Smark Lyles, is this the correct amount?
Schedule I. Part 8.a. requires that the debtor attach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income.
Motion to Value. The debtor's status report indicates that the debtor intends to file a motion to value the real property. When does the debtor anticipate filing the motion to value?
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UST compliance. The United States Trustee has filed a motion to dismiss or convert (dkt. 24). Although the matter has been set for hearing on 6/21/16, the debtor should be prepared to address more generally, why this case in chapter 11 instead of chapter 13. It appears that the debtor is within the debt limits for chapter 13, and chapter 11 typically is far more expensive, so it seems doubtful that the debtor needs or can afford a chapter 11 case.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/19/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time). This Court is aware that the debtor has requested a much later deadline (dkt. 23, p.4) but this Court is not aware of any reason why so much time is needed. The debtor should be negotiating with secured creditors and other key constituencies already.
Continued status conference: 7/19/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Glynder Lucas Striggs Represented By Onyinye N Anyama
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fr. 4/12/16, 04/26/16, 05/17/16, 8/2/16, 9/6/16, 11/8/16, 11/29/16, 1/17/17, 1/31/17, 03/21/17, 4/11/17, 06/13/17,
9/19/17, 11/14/17, 02/13/18
Docket 271
Tentative Ruling for 7/10/18:
Continue to 9/18/18 at 1:00 p.m. Appearances are not required on 7/10/18.
Reasons: The tentative ruling is that the debtor's anticipated lack of distribution from the sale of the Tchoupitoulas property (per the latest post- confirmation status report, dkt. 290, para.5) is consistent with the terms of the plan (dkt. 227), disclosure statement (dkt. 228, including Ex.H, n. N15), and confirmation order (dkt. 253). The tentative ruling is also that, although the debtor anticipates that the sale might occur on or before 8/13/18, and that other matters might not require a status conference for several months (dkt. 290, para. 8), nevertheless in this Court's experience issues tend to arise in this and other cases that make it advisable not to continue status conferences out quite so far. Accordingly, the tentative ruling is to continue the status conference to the date and time set forth above.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Continue to 7/10/18 at 1:00 p.m. as suggested in the debtor's latest post- confirmation status report (dkt. 272, para. 10). Appearances are not required on 2/13/18.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Continue to 2/13/18 at 1:00 p.m. Appearances are not required on 11/14/17.
Reasons: The debtor's post-confirmation status report (dkt. 270) appears to show sufficient progress and compliance with the confirmed Plan (dkt. 227, confirmed by order at dkt. 253). Therefore the tentative ruling is to continue this status conference to allow the parties more time to reach a resolution with regards to the Tchoupitoulas property.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/19/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Continuance. The debtor's post-confirmation status report (dkt. 264) appears to show sufficient progress and compliance with the confirmed Plan (dkt. 227, confirmed by order at dkt. 253). Therefore the tentative ruling is to continue this status conference to 11/14/17 at 1:00 p.m.
Request for early discharge. The same status report (dkt. 264, para. 7-10)
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suggests that the pendency of this case is impeding the debtor's ability to finish reorganizing his finances, and therefore the debtor may seek to close the case, but he is concerned that creditors may misinterpret that as permission to pursue him for prepetition debts (beyond enforcement of any such debts that survive in his Plan obligations) and therefore he may seek to obtain an early discharge of any debts that are not being paid under the Plan. That anticipated request is not presently before this court, but in the context of this status conference it is appropriate to address any standing policies of this court and any procedures that should be established regarding any such request.
Under the terms of the Bankruptcy Code, incorporated into the confirmed Plan (dkt. 227, p.4, Art.IV.A.) (see also Disclosure Statement, dkt. 228, p.2, summarizing same), without modification by the confirmation order (dkt. 253), there are only limited circumstances in which the debtor can obtain a discharge prior to the 84 month term for completion of payments to general unsecured creditors:
IV.A. Pursuant to § 1141(d)(5), Debtor will not be discharged
from any debts unless and until (1) Debtor completes all payments “under” the Plan and obtains an order of the court granting a discharge (§ 1141(d)(5)(A)&(C)) – for purposes of this Plan payments that extend beyond the Plan Term stated in Exhibit A are not considered payments “under” the Plan (e.g., if the Plan Term is 5 years then Debtor will be eligible for a discharge under this clause if 5 years of payments are made, but the debtor will remain obligated on obligations that extend beyond the Plan Term, such as a 30-year mortgage); (2) the court grants a limited (“hardship”) discharge (§ 1141(d)(5)(B)&(C)); or (3) the court “orders otherwise for cause” (§ 1141(d)(5)(A)&(C)). [Dkt. 227, p.4 (emphasis added)]
The debtor should be prepared to address whether he will pursue his stated intent to seek an early discharge, and if so on what grounds, and pursuant to what procedures.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Revised Tentative Ruling for 6/13/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 227) and disclosure statement (dkt. 228) & errata (dkt. 246). The parties should be prepared to address the objection by CitiMorgage, Inc. (dkt. 237) and the debtor's responses (dkt. 242, 250) as well as the ballot summary (dkt. 243) and whether the SEC has been or needs to be served (see dkt. 230 at p.1:23-24, and dkt. 236).
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Continued status conference: TBD
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 4/11/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Creditor CitiMortgage's objection (dkt. 217). As creditor CitiMortgage points out in its objection, its treatment under the plan is not properly specified in Exhibit A1. In addition, CitiMortgage refers to a possible stipulation. What is the status of this stipulation and/or any negotiations between the debtor and CitiMortgage?
Amended Chapter 11 Plan and Disclosure Statement (dkt. 183- 186). This court will review the other minor issues with these documents orally at the hearing.
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Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: 4/13/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 5/9/17 at 1:00 p.m. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/21/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status of financing. The debtor should be prepared to address the status of his attempts to obtain financing (dkt. 212) and the effects on this case.
Chapter 11 Plan and Disclosure Statement. The parties should be prepared to address whether the debtor has a viable alternative to his previously filed plan and disclosure statement (dkt. 185-186), and alternatively whether he intends to proceed under those documents and whether that is viable.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: to be addressed at the hearing.
Continued status conference: 4/25/17 at 1:00 p.m. No written status report is required.
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/31/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Financing transaction (dkt. 191) and Amended Chapter 11 Plan and Disclosure Statement (dkt. 183-186). The debtor should be prepared to address how the proposed financing will change the plan documents.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: this court anticipates setting the following deadlines: 2/10/17 to file (NOT SERVE - except on the
U.S. Trustee) any revised versions of these documents, to be discussed at the status conference, and to lodge a proposed order (on the form posted on Judge Bason's portion of the court's web page) setting a combined hearing for 4/25/17 at 1:00 p.m. on final approval of the disclosure statement and confirmation of the plan.
Continued status conference: 2/7/17 at 1:00 p.m. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/17/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues.
Amended Chapter 11 Plan and Disclosure Statement (dkt. 183-186).
This court will review minor issues with these documents orally at the hearing.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: this court anticipates setting the following deadlines: 1/19/17 to file (NOT SERVE - except on the
U.S. Trustee) any revised versions of these documents, to be discussed at the status conference, and to lodge a proposed order (on the form posted on Judge Bason's portion of the court's web page) setting a combined hearing for 3/21/17 at 1:00 p.m. on final approval of the disclosure statement and confirmation of the plan.
Continued status conference: Same date and time and combined disclosure statement/plan hearing. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Amended Chapter 11 Plan and Disclosure Statement (dkt. 174, 175, 177). This court will review various issues with these documents orally at the hearing.
Deadlines/dates. This case was filed on 2/17/16.
(1) Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: this court anticipates setting the following deadlines: 12/19/17 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the
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status conference.
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at
least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 1/17/17 at 1:00 p.m. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/8/16:
Continue to 11/29/16 at 2:00 p.m. for the reasons stated in the debtor's pending motion to extend time for filing plan and disclosure statement and extend exclusivity (dkt. 166). Appearances are not required on 11/8/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 9/6/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issue: objection to AOK claim
This court has reviewed the debtor's objection (dkt. 121) to proof of claim 9-1, filed by AOK Brothers, LLC (AOK); AOK's opposition (dkt. 147); and the debtor's reply to the objection (dkt. 150).
Default interest
The parties do not appear to disagree on the legal standards. The debtor does not (at this time) seek to disallow default interest pursuant to any "cure" concept under bankruptcy law. Cf., e.g., GECC v. Future Media, 547 F.3d 956 (9th Cir. 2008); In re Entz-White Lumber and Supply, Inc., 850 F.2d
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1338 (9th Cir. 1988). Rather, the debtor relies on California law. See generally In re Kord Enterprises II, 139 F.3d 684, 687 (9th Cir. 1998).
As stated by the California Supreme Court, the analysis under California law is to determine whether default rates of interest are either permissible liquidated damages or an impermissible penalty:
[California Civil Code] Section 1671 authorizes the assessment of agreed-upon and anticipated damages only when the fixing of the actual damages which would be sustained upon a breach would be "impracticable" or "extremely difficult." Where, as here, the issue is presented on admitted facts it is one of law and must be examined from the position of the parties at the time the contract was entered into. The party seeking to rely on a liquidated damages clause bears the burden of proof. [¶] "The validity of a clause for liquidated damages requires that the parties to the contract 'agree therein upon an amount which shall be presumed to be the amount of damages sustained by a breach thereof....'" (Civ. Code, § 1671.) This amount must represent the result of a reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be sustained. [Garrett v. Coast & Southern Fed. Sav. & Loan Assn., 9 Cal.3d 731 (1973) (citations and some internal quotation marks omitted, emphasis added). See also Ridgley v.
Topa Thrift & Loan Assn., 17 Cal. 4th 970, 981 (Cal. 1998).]
In this instance, AOK has not met its burden to establish that the default rate of interest is permissible under California law. A five percent (5%) interest rate has not been shown to be a reasonable estimate of liquidated damages, given the $1.3 million equity cushion AOK has in the property. In addition and alternatively, there is no showing of any anticipated damages - beyond the compensation that AOK already can claim through late charges, ongoing interest at the non-default rate, and other things such as attorney fees as set forth below – let alone evidence that the parties made a reasonable endeavor to estimate any such additional losses.
The debtor estimates that AOK's proof of claim includes at least
$15,000 of default interest. The tentative ruling is to set a deadline of 9/20/16 for AOK to file an amended proof of claim that shows the calculation of default interest, and a deadline of 9/27/16 for the debtor to lodge a proposed
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order, with a copy of this tentative ruling attached, that disallows all default interest (including not just whatever AOK asserts as of the petition date but also any future claim for default interest).
Attorney fees
The debtor's motion requests that AOK's claim be reduced by
$34,221.46 for unreasonable and unnecessary attorney's fees incurred by AOK's counsel. The tentative ruling is to disallow a portion of those fees as set forth below.
The debtor is correct that the loan documents contain confusing provisions regarding attorney fees. But the tentative ruling is that the debtor is incorrect in arguing (dkt. 121, p.5:27-28) that a notice of acceleration or similar predicates were required before he had any obligation to pay AOK's attorney fees.
Some loan document clauses require notices of acceleration or similar predicates
On the one hand, several clauses support the debtor's reading that AOK was required to send a notice of acceleration (or similar predicates) before being entitled to any attorney fees.
The promissory note has a section (section 4.D) providing that "[i]f" immediate full payment is required (acceleration, at AOK's option upon default) then AOK will have the right to be paid its reasonable attorney fees (dkt. 121, Ex.1, at PDF p.30, emphasis added).
The deed of trust ("DOT") provides (section 17) that if a notice of default is provided and the breach is not timely cured then AOK shall be entitled to collect all reasonable attorney fees "incurred in pursuing the remedies provided in this paragraph 17" (power of sale and other remedies permitted by applicable law). Dkt. 121, Ex.1, at PDF p.48.
The DOT's more general provision regarding protection of AOK's security (section 7) states that if debtor fails to perform then "upon notice to [debtor]" (dkt. 121, Ex.1, at PDF p.46, emphasis added) AOK may disburse sums and take actions necessary to protect its interests including disbursement of reasonable attorney fees.
An addendum to the promissory note (id., at PDF p.35, the "Note Addendum") and a rider to the DOT (dkt. 121, Ex.1, at PDF p.55, the "DOT Rider") both provide that "[i]n the event that" there is a payment default and AOK permits the debtor "to cure the default," then the
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debtor shall pay AOK "all reasonable attorney fees and costs incurred by [AOK] originating from this default and the cure thereof." (Emphasis added.)
The tentative ruling is that the debtor is correct that his "personal guaranty" of his own obligation is a nullity, so its attorney fee clause (dkt. 147, Ex.B, section 6) is of no force and effect.
Other clauses require the debtor to pay AOK's attorney fees reasonably necessary to bring any late payments current
On the other hand, the Note Addendum and DOT Rider also provide that, if AOK has not received the full amount of any monthly payment by the end of ten calendar days after it is due, the debtor "will promptly pay to [AOK] all costs incurred by [it], including, but not limited to, attorneys' fees reasonably necessary to bring any late payments (overdue payments) current." Dkt. 121, Ex.1, at PDF pp. 35 & 55 (emphasis added). No notice of acceleration or other prerequisite is required for this obligation.
The debtor (dkt. 121, pp. 7:23-8:11 and 8:17-9:3) cites authority that such clauses must be construed narrowly against the lender, and argues that in this light AOK's bankruptcy litigation was not "reasonably necessary to bring any late payments (overdue payments) current." Instead, the debtor argues, AOK's litigation was bankruptcy-related: opposing the debtor's use of cash collateral; seeking to convert this case to one under chapter 7 of the Bankruptcy Code; opposing the debtor's motion to extend the exclusive period in which only he may propose a plan of reorganization; etc.
It is true that the decisions cited by the debtor construe such clauses strictly against the lender. See dkt. 121, p.8:1-11 (citing cases); and see, e.g., In re Cukierman, 265 F.3d 846, 852 (9th Cir. 2001); In re Westside Print Works, 180 B.R. 557 (9th Cir. BAP 1995). But a fair reading of the loan documents, even construed against AOK, is that it was "reasonably necessary" to pay attorneys to engage in bankruptcy litigation in order to attempt to "bring any late payments" current. In fact, the whole point of bankruptcy reorganization (by this debtor and most debtors) is to attempt to defer or restructure financial obligations; and in opposing such attempts the creditor is attempting to "bring any late payments" current, as nearly as possible given the constraints of the bankruptcy system on creditors' exercise of their remedies.
Alternatively, even supposing that there were sufficient ambiguity about the loan documents to reach a different conclusion, that ambiguity would be resolved by the letter signed by the debtor (dkt. 147, Ex.E)
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confirmed that he agrees to pay a late fee "in addition to any legal fees [AOK] incurs in connection with collecting any payment on my loan." Again, a fair reading of this document is that "collecting" payments includes filing a claim in a bankruptcy case, opposing the debtor's attempts to defer or reduce payments, and otherwise engaging in bankruptcy litigation.
For the foregoing reasons, AOK is owed its reasonable attorney fees.
The remaining question is what attorney fees were reasonable.
Reasonableness of AOK's attorney fees
The debtor is correct that, at least on the present record, AOK appears to be greatly oversecured, so much of its litigation was unnecessary to protect its interests and doomed to fail from the outset. In addition, as this Bankruptcy Court has noted before on the record, many of AOK's arguments lacked a sufficient foundation.
On the other hand, as this Bankruptcy Court previously has also observed, the debtor has been sloppy in some aspects of his case management – such as failing to recognize that AOK has an interest in cash collateral; or failing to provide adequate notice to AOK. In addition, the debtor's sloppiness and tendency to overstate his arguments justify greater involvement by AOK than typically might be required for a creditor protected by a substantial equity cushion.
This Bankruptcy Court has taken these things into consideration in reviewing AOK's daily timesheets. That review has been hampered by the fact that AOK's timesheets do not comply with the local rules and guidelines – for example, time entries are "lumped" together, and they do not often identify the precise issues addressed (e.g., the subjects of telephone conferences generally are not described). Nevertheless, this Bankruptcy Court has sufficient familiarity with the filed pleadings and records in this case, as well as the approximate amount of fees that normally would be incurred in cases of this sort, to be able to rule on this record. In addition, it does not appear that any party's interests would be served by the expense and delay of further briefing.
In view of the foregoing, the tentative ruling is to reduce AOK's legal fees to date by $14,000.00.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement*: 9/27/16 deadline to file (NOT SERVE,
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except on the US Trustee, AOK, and any other party requesting special notice) a draft plan and draft disclosure statement on the forms required by Judge Bason.*
Continued status conference: 10/18/16 at 2:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/6/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 8/2/16:
Continue to 9/6/16 at 2:00 p.m. to address the following issues. Appearances are not required on 8/2/16.
On 7/19/16, this Court held a hearing on the debtor's motion to extend exclusivity. At that hearing, this Court excerced its inherent authority to manage its docket and determined that it was appropriate to continue this matter so that it is held concurrently with the debtor's objection to AOK Brother's claim.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 5/17/16:
Continue to 6/21/16 at 1:00 p.m. Appearances are not required on 5/17/16.
Current issues
Cash collateral motion. Grant (please see the tentative ruling for matter number 5, 5/17/16 at 1:00 p.m. for this Court's reasoning regarding the debtor's cash collateral motion).
Properties. The tentative ruling is that the debtor has provided an
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adequate status report (dkt. 81), for present purposes, regarding the two properties as to which there appears to be some confusion regarding ownership: (i) 5255 Tchoupitoulas St., New Orleans Property and (ii) 3324 Octavia, New Orleans, Lousiana.
Claim objections. Once AOK Brothers has filed its proof of claim, and the debtor has filed his objection, this Court will address whether to make preliminary rulings before or after directing the parties to mandatory mediation (note: Judge Bason's policy is to order mediation before one of the volunteer mediators, not a Bankruptcy Judge).
Disclosure statement notice period. The debtor is correct (dkt. 81, para. 25) that the correct period is 42 days (the local rule is outdated and is in the process of being revised).
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement*: file by 9/5/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: Continue as set forth above. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/17/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 4/26/16:
Deny the motion of AOK Brothers, LLC ("AOK") to dismiss or for other remedies (dkt. 51), and set a continued status conference, all as further set forth below. Appearances are not required.
Current issues.
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Motion to dismiss etc. (dkt. 51). Deny the motion without prejudice to renewing it at a later date, if sufficient cause exists.
Proposed order: The debtor is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Reasons for denial:
Motion and opposition. The crux of AOK's motion is that cause exists under 11 USC 1112(b)(4) to convert or dismiss this case, and alternatively under 11 USC 1104, to appoint a chapter 11 trustee based on the debtor's alleged "gross mismanagement of the estate" and his "unauthorized use of cash collateral" that allegedly was "substantially harmful to 1 or more creditors[.]" 11 USC 1112(b)(4)(B) & (D). (In its reply (dkt. 65), AOK raises a number of additional issues allegedly supporting such relief.)
On the one hand this Court is somewhat concerned about (A) the debtor's (apparently inadvertent) use of cash collateral without authorization and (slight) delay in seeking such authorization once he was alerted to the assignment of rents issue (see dkt. 39), (B) his filing of this case in the wrong division of this district (see dkt. 19, 21), (C) his refusal to communicate in writing with AOK's counsel except in limited ways, (D) some vagueness regarding the assets and liabilities of the bankruptcy estate, (E) the prior bankruptcies affecting the property on which AOK has a lien, and (F) AOK's other allegations. Nevertheless, this Court is not persuaded based on the current record that there has been anything remotely approaching "gross" mismanagement of this estate or that the duration and nature of the use of cash collateral caused any "substantial" harm (if there was any harm at all) to any creditors, including AOK.
There is no evidence that the cash collateral was used for anything other than legitimate purposes. One such use has been paying liens, including tendering payments to AOK at an interest rate that is prima facie
within a reasonable range for adequate protection of AOK's interest (and AOK has not rebutted that prima facie showing). Another use of cash collateral is to maintain the subject property (see dkt. 40, budget at pp. 4-6). AOK has not identified any harm at all, let alone "substantial" harm, from this use of cash collateral.
AOK's reply. AOK raises a number of new issues in its reply.
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That is procedurally improper and should be disregarded. See LBR 9013-1 (g)(1).
Alternatively and additionally, these new issues are not sufficient to warrant conversion, dismissal, or appointment of a chapter 11 trustee. It is true that, in general, a debtor has a fiduciary obligation to make disclosures, conduct investigations, and take actions regarding liabilities and assets, including such matters as claims objections and potential avoidance actions. If this bankruptcy estate turns out to be insolvent, and if the other facts and circumstances warrant, then the debtor might have to consider recovering the funds that were used to pay for his son's legal fees, and in any event he may have to sort out his interests in certain real property and in the law firm with his wife. But at this early stage AOK has not established that the debtor is shirking any such duties at all.
The debtor has represented that he anticipates a 100% payment to creditors, and he is contemplating a sale or refinance of at least one property, all of which makes it likely that any pursuit of avoidance actions would be premature and possibly a waste of time and resources. AOK's secured claim appears to be adequately protected (as noted above).
Of course, AOK is not required to accept the debtor's assertions at face value, it can elect to do its own due diligence and otherwise protect its interests, and presumably (although this issue has not been briefed) it may be entitled to reimbursement under the loan documents and applicable law in some dollar amount for a reasonable expenditure of attorney fees in pursuit of those things. But at this early stage of this case AOK has not come close to showing any substantial basis for the extreme remedies of conversion, dismissal, or appointment of a chapter 11 trustee.
Turning to another example, it is true that the California ethical rules provide that "[w]hile representing a client" a member of the bar shall not communicate with a party whom the member "knows" to be represented by another lawyer in the matter (without that lawyer's consent). See Reply (dkt. 65) p.8:10-14 (quoting Rule 2-100). AOK has not cited legal authority that the debtor, representing himself, is "representing a client" within the meaning of the rule. In addition, the debtor has denied having the requisite knowledge of the representation, and AOK has not presented any contrary evidence.
Moreover, supposing for the sake of discussion that AOK could show an ethical violation, it has not cited any authority that this would be sufficient for conversion, dismissal, or appointment of a chapter 11 trustee. This Court
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does not condone the alleged nature and tone of the communications (see Nelson Decl., dkt. 65, at PDF pp. 11-12), but if those were proven and amounted to actual ethical violations there would be separate remedies that would be more closely tailored to any actual wrongdoing, as opposed to sweeping remedies such as dismissal that may harm all creditors (and that might unduly punish even a debtor who has violated an ethical rule).
The remaining issues raised in AOK's reply appear to be most appropriately resolved through other means, such as a claim objection, consideration of a draft disclosure statement and plan, or the usual process of oversight by the Office of the United States Trustee ("UST"). For example, having reviewed the record in this case (including the transcript from the hearing on 4/12/16), it does not appear that this Court ordered the debtor to file an amended bankruptcy Schedule I, contrary to AOK's assertions in its reply. It is true that the UST and the debtor discussed possible amendments to the bankruptcy schedules at a prior hearing, but this Court left that in the first instance to the discretion of the debtor (under the eye of the UST) and any purported lack of accuracy will only be appropriate for this Court to address if later developments show that the debtor abused that discretion.
Debtor's supplemental opposition (dkt.68). The debtor's supplemental opposition is unauthorized and therefore, like the new arguments in the reply, need not be addressed. In addition and alternatively, this Court need not consider the factual allegations in that document (largly concerning the alleged ethical violation) because this Court is not persuaded by the reply in any event (for the reasons set forth above).
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement*: file by 9/5/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
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Continued status conference: 5/17/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/12/16:
Appearances required by the debtor in person and any counsel for the debtor.
Current issues.
Status report. This Court has reviewed the debtor's timely filed status report (dkt. 47).
Regarding the debtor's request to file an explanation of the facts that gave rise to this case under seal, this Court requests that the U.S. Trustee state whether it would oppose such request and whether a written motion should be required.
In addition, the debtor should address what is meant by stating, with respect to possible sale procedures (dkt. 47, p.5:25-27), "This depends on how Court views New Orleans property."
Employment of a real estate professional. When does this debtor anticipate filing a motion to employ a real estate professional to sell the one New Orleans property that he contemplates selling?
Cash collateral. This Court has issued a separate tentative ruling addressing the debtor's proposed use of cash collateral (see calendar number 2, 4/12/16 at 1:00 p.m.).
Monthly Operating Report ("MOR") (dkt. 53). The debtor refers to a postpetition settlement. Will that need to be subject to a motion under Rule 9019?
Business income and expenses. The debtor's amended bankruptcy Schedules I&J (dkt. 45) fail to provide a breakdown of gross income, expenses, and net income for his business despite the instructions to do so on line 8a of Schedule I. The tentative ruling is to set a deadline of 4/19/16 to file an amended Schedule I that provides a detailed breakdown.
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Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/5/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 4/26/16 at 2:00 p.m. (to be heard concurrently with the AOK Brothers, LLC motion to dismiss). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
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DEPARTMENT OF EDUCATION
vs DEBTOR
Docket 4
Tentative Ruling for 7/10/18:
Grant, for the reasons stated at the hearing on 6/14/18 and because the debtor has now had the "breathing spell" that this Court contemplated. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): the debtor's opposition (dkt. 27); the movant's reply (dkt. 29).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/14/18:
Appearances required. There is no tentative ruling. Any opposition and any reply may be presented orally at the hearing (see Order, dkt. 8).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Golden Day Schools, Inc. Represented By Leslie A Cohen
Movant(s):
California Department of Education Represented By
Matthew C. Heyn
Trustee(s):
Jason M Rund (TR) Pro Se
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Docket 1
Tentative Ruling for 7/10/18 (same as for 6/19/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to provide an update on the status of their negotiations, and whether all matters on calendar for today in the Sakurai and Checkmate cases (including the adversary proceeding against Fower and Radiology Solutions) should be continued to 8/7/18 at 2:00 pm., with a brief status report due 7/24/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 186, 187, 188). At the status conference this Court will address changes that need to be made to the amended disclosure statement and amended plan prior to service on creditors.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
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Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 186, 187): At the status conference this Court will discuss
deadlines for filing an amended disclosure statement and plan, and whether to set hearing(s) on final approval of the disclosure statement and whether to approve the plan.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required by counsel for the debtors but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Joint Plan/ Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 176, 177, 178). At the status conference this Court will address numerous issues with these documents.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Joint Plan/Disclosure Statement* (dkt. 176, 177): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status
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report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 48). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Fresco Adversary Proceeding (adv. case no. 2:17-ap-01558-NB), including motion to remand (adv. dkt. 8). The tentative ruling is that this matter will be mooted, assuming that this Court approves the parties' proposed settlement, and therefore this matter should go off calendar. The parties are reminded to file appropriate papers to have this matter dismissed once the settlement is fully implemented.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report
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required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
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Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference,
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including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB,
dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
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Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent,
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then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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Docket 1
Tentative Ruling for 7/10/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 7/10/18 at 2:00 p.m.)
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/19/18 at 2:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement (dkt. 175, 176).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 177), appear to be identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 186, 187, 188. Counsel are directed to alert this Court and the parties at the hearing if they are not.
For the tentative ruling regarding these documents, see the tentative
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ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/12/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 175, 176): At the status conference this Court will discuss appropriate deadlines.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required.
Current issues.
Joint Plan/Joint Disclosure Statement (dkt. 165, 166).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 167). are substantially identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 176, 177, 178. For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 5/8/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Joint Plan/Disclosure Statement* (dkt. 166, 167): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE -
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except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 57). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
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U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in
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the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be
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prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the
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separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
(2) Claim and Delivery; (3) Conversion; (4) Breach of Guaranty;
(5) Fraud; (6) Preliminary Injunction; and (7) Constructive Trust fr. 5/8/18, 6/12/18, 6/19/18
Docket 1
Tentative Ruling for 7/10/18 (same as for 6/19/18):
Please see the tentative ruling for the Sakurai status conference (calendar no. 2, 7/10/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Appearances required.
Current Issues.
Joint Status Report and Notice of Continuances. This Court's 5/8/18 tentative ruling (see below) was not opposed, so it became this Court's actual ruling.
This Court directed (i) Checkmate to file and serve a notice of continuances attaching and incorporating by reference the deadlines in that tentative ruling by 5/7/18, and (ii) the parties to file a brief joint status report by 5/29/18. As of the preparation of this tentative ruling, none of the parties have complied. The parties are cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Motion for TRO & Claim and Delivery (adv. dkt. 10).
Plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") has filed a stipulation (adv. dkt. 30) with defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") for turnover of equipment. But Checkmate has not provided any evidence that it has relief from the automatic stay and consent of the Chapter 7 Trustee in the RS and Fower bankruptcy cases for such turnover (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA). The tentative ruling is to set a deadline of 6/19/18 for Checkmate to file a declaration attaching
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evidence sufficient to establish those things, and lodge a revised proposed order to approve the stipulation.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time. Continue to 7/17/18 at 2:00 p.m., brief joint status report due 7/3/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
The tentative ruling is to continue all pending matters in this adversary proceeding to 6/12/18 at 2:00 p.m. for the reason stated below, with a brief joint status report due 5/29/18, and with a deadline of 5/7/18 for the plaintiff to file and serve a notice of continuances attaching and incorporating by reference the deadlines in this tentative ruling (assuming that this Court is not persuaded to depart from this tentative ruling). Appearances are not required on 5/8/18.
Current Issues. This Court has reviewed the parties' status reports (adv. dkt. 24 & 26) and the other filed documents and records in this adversary proceeding.
Motion for TRO & Claim and Delivery (adv. dkt. 10). At the 4/9/18 hearing on this motion, counsel for plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") apprised this Court of the bankruptcy filings of defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA) and requested a continuance of this hearing to allow time to obtain orders granting relief from stay with annulment. In the Joint status report (adv. dkt. 24), Checkmate states that the hearings on the relief from stay motions are scheduled for 5/15/18. Accordingly, the tentative ruling is to continue this motion to the date and time
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set forth at the start of this tentative ruling.
Siemens Motion to Dismiss (adv. dkt. 27, the "MTD"). Defendant Siemens Medical Solutions USA, Inc. ("Siemens") has properly self- calendared its MTD for 6/12/18 at 11:00 a.m. Siemens anticipates that it may be voluntarily dismissed by plaintiff (see adv. dkt. 24), but if that does not occur then this Court anticipates that the MTD may take 15 minutes or more to hear. This Court's practice is that matters anticipated to take 15 minutes or more are heard on the 2:00 p.m. calendar (not available for self-calendaring, except by permission of this Court). Therefore the tentative ruling is to re- calendar the MTD from 11:00 a.m. to 2:00 p.m., which is concurrent with the other matters in this adversary proceeding that are on today's calendar.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Represented By Vatche Chorbajian
George Tyler Fower Represented By Vatche Chorbajian
Siemens Medical Solutions USA Inc Represented By
Marsha A Houston
2:00 PM
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
fr. 4/9/18, 4/10/18, 5/8/18, 6/12/18 ,6/19/18
Docket 10
Tentative Ruling for 7/10/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 4, 7/10/18 at 2:00 p.m.).
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 7, 6/19/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 7, 6/12/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 8, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 2:00 p.m. for the reasons stated on the record on 4/9/18. Appearances are not required on 4/10/18.
Tentative Ruling for 4/9/18:
Appearances required. There is no tentative ruling, but the parties should be
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prepared to address whether this court should grant Checkmate's request for an expedited hearing and issue an order granting a temporary restraining order and order the immediate turnover of the Collateral pursuant to Checkmate's claim and delivery action.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Represented By Vatche Chorbajian
George Tyler Fower Represented By Vatche Chorbajian
Siemens Medical Solutions USA Inc Represented By
Marsha A Houston
Movant(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Docket 292
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 294
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 296
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 332
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
The Bird's Nest Represented By Howard Steinberg Robert Mockler
2:00 PM
Docket 350
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
Docket 351
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
for Interim Use of Estate Property as Defined in 11 U.S.C. Sec. 1115
fr. 5/3/18, 5/7/18, 6/12/18
Docket 96
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
2:00 PM
fr. 6/12/18
Docket 216
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
3:00 PM
(2) Allocate Proceeds Resulting from Approval, if Any, of the Motion for Order Approving Settlement Between Debtor and CKT Logistics, Inc., Fargo International, LLC, Fargo Transport, LLC, Fargo Trucking Logistic Co., LLC, Express FTC, Inc., Hancore Brokerage Services, Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019 Related to the Secured Creditors Liens
Docket 122
This court anticipates posting a tentative ruling no sooner than the afternoon of Monday 7/9/18.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
10:00 AM
and Immaculate Heart of the Blessed Virgin Mary, The Bird Nest, LLC and the Official Committee of Unsecured Creditors
Docket 445
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Roman Catholic Archbishop of Los Angeles vs
Hollister
fr. 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18
Docket 68
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Docket 5
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
for Interim Use of Estate Property as Defined in 11 U.S.C. Sec. 1115
fr. 5/3/18, 5/7/18, 6/12/18, 7/10/18
Docket 96
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Tentative Ruling for 5/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, 5/7/18 at 2:00 p.m.).
Tentative Ruling for 5/3/18:
Please see the tentative ruling for the status conference (calendar no. 15, 5/3/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Docket 292
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Most Holy and Immaculate Heart of the Blessed Virgin Mary
fr. 7/10/18
Docket 296
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
fr. 7/10/18
Docket 294
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
fr. 6/12/18, 7/10/18
Docket 216
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Docket 350
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
fr. 7/10/18
Docket 351
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Alternatively, to Terminate Exclusivity fr. 7/10/18
Docket 332
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
The Bird's Nest Represented By Howard Steinberg Robert Mockler
10:00 AM
fr. 6/12/18, 6/22/18
Docket 214
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Docket 112
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Docket 308
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
This matter will be heard on 6/12/18 at 3:00 p.m., to be concurrent with the other matters on for hearing in this case. Appearances required at that time (see Order, dkt. 310).
The tentative ruling is to grant extension of the exclusivity period under 11
U.S.C. section 1121, up to and including 11/15/18, subject to any opposition at the hearing.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
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fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18
Docket 1
Tentative Ruling for 7/16/18:
Appearances required. The tentative rulings are set forth below. In addition, the tentative ruling is to set a continued status conference on 7/27/18 at 9:00 a.m., or such alternative time as may be ordered at the hearing.
Current issues.
9019 Motion (see Term Sheet, dkt. 445). This Court will address the objections filed by Mr. Casanova (dkt. 465, 466) and The Presbytery of the Pacific (the "Presbytery") (dkt. 467) and the replies filed by the debtor (dkt. 472) and by the Archbishop/Institute and the Bird Nest (dkt. 474). Among other things, this Court will address whether the Term Sheet can be approved without the further documentation that is contemplated by the settling parties. In that regard, the parties should address the proposed amendment to paragraph 6 of the Term Sheet. See dkt. 474, Ex.C.
This Court expresses no present opinion on those issues. This Court is intentionally withholding any further tentative ruling on those matters so as not to disrupt potential settlement discussions among those parties, but if the parties have not agreed to the proposed amendment to paragraph 6 (or some other resolution) then this Court intends to provide a tentative ruling at the commencement of the hearing.
The parties are encouraged to meet and confer about the foregoing issues. If, at the end of the hearing, there are issues that remain to be addressed, then the parties should be prepared to address whether this Court should set a continued hearing on the date and time specified at the start of this tentative ruling or some other date.
Stay relief motion (appellate litigation with Bird Nest and Archbishop/Institute) (dkt. 68). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of
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the settlement motion.
Exclusivity motion (dkt. 308, 348, 422). Continue to the date and time set forth at the start of this tentative ruling, and meanwhile extend exclusivity for the same amount of time, on the same terms and conditions as this Court's Prior Order (dkt. 422) - i.e., no incurring of fees or expenses for plan-related work. This Court calculates that the extensions would be as follows: (i) The 120-day period specified in section 1121(c)(2) and (d)(1) (deadline for filing a plan) will be further extended from 8/15/18 (see dkt. 422) to and including 9/19/18, and (ii) the 180-day period specified in section 1121 (c)(3) and (d)(1) (deadline for acceptance of plan by impaired classes) will be further extended from 10/15/18 (see dkt. 422) to and including 11/19/18.
Cash Collateral motion (dkt. 5). Continue to the date and time set forth at the start of this tentative ruling, and meanwhile extend the interim authorized use of cash collateral through and including the conclusion of the continued hearing subject to the same terms and conditions as previously authorized by this Court (see dkt. 29, 79, 239, 244, 347, 413), if this motion is not mooted by the disposition of the settlement motion.
Bridge Tavern, LLC asset sale motion (dkt. 112). Continue to the date and time set forth at the start of this tentative ruling.
Villain's Tavern reopening motion (dkt. 214). Grant. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Trustee appointment motion (dkt. 332). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Security Deposit refund motion (dkt. 350). Grant. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Budget motion (dkt. 96). Extend the interim authorization through and including the date of the continued hearing and meanwhile approve the budget subject to the same terms and conditions as previously authorized by the Court (see dkt. 340), if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Bird Nest) (dkt. 292). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Institute) (dkt. 296). Continue to the date and time
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set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Archbishop) (dkt. 294). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Vehicle refinance motion (dkt. 216). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Vehicle relief from Stay motion (dkt. 349). The hearing on this motion has been vacated, and this matter is off calendar (see Adequate Protection Order, dkt. 444).
Motion to Assume and Assign 1629 Griffith Lease (dkt. 351). Continue to the date and time set forth at the start of this tentative ruling.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD.
Continued status conference: Date and time set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/22/18:
Appearances required.
Current issues.
Urbanlime/Haro employment (dkt. 93, 253), Bridge Tavern (Villain's) Reopening Motion (dkt. 214, previously granted, dkt. 339, but rescheduled per dkt.369 para. 4.5), Sale Motion (dkt. 112, temporarily denied,
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dkt. 369, 385) and Lease Assignment Motion (dkt. 187, re-set for hearing, dkt. 388). The parties should be prepared to address the issues set forth in this Court's orders (dkt. 369, 378, 385, 388) setting this hearing.
Motion to extend exclusivity (dkt. 308, 312, 333, 348). The tentative ruling is to preserve the status quo by:
prohibiting the estate from incurring any fees or expenses relative to any contemplated plan between time this tentative ruling is posted and the conclusion of the hearing on the motion to appoint a trustee (dkt. 332, the "Trustee Motion"), currently scheduled for 7/10/18 at 2:00 p.m;
if the Trustee Motion is denied, then extending exclusivity through at least 8/14/18 (any further extension will be addressed at the hearing on 7/10/18 at 2:00 p.m.), so that Mr. Tilem will have the time he has stated he would need to draft a plan (approximately 30 days); and
if the Trustee motion is granted, then terminate exclusivity. (c) Cash collateral motion (dkt. 5, 14, 15, 29, 74, 151, 152, 163, 164,
167, 168, 171, 172, 176, 185, 244). The tentative ruling is to continue this matter to 7/10/18 at 2:00 p.m., and meanwhile authorize the continued use of cash collateral through the conclusion of that continued hearing.
(d) Relief from stay motion (dkt. 68, 79, 141, 147, 154, 162, 222 section v., 270, 312). The tentative ruling is to continue this matter to 7/10/18 at 2:00 p.m.
Expansion of Insul employment (dkt. 305). Please see calendar no. 2 (6/22/18 at 10:00 a.m.).
Hearings on 7/10/18. Some matters in this case have been self- calendared for 7/10/18 at 1:00 p.m. The tentative ruling is that all matters set for 7/10/18 in this case will be heard at 2:00 p.m.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 7/10/18 at 2:00 p.m., status report due 7/5/18 at noon.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
This court anticipates posting a tentative ruling at a later time. [Note: no further tentative ruling was posted.]
Tentative Ruling for 5/7/18:
[See Memorialization of Tentative Rulings for 5/7/18 (dkt. 234, 236, 238, 239)]
Tentative Ruling for 5/3/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The only issue this Court intends to address is a continued hearing date in view of the last-minute papers that were filed, to fit the parties' and this Court's own needs.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear.
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues.
Cash flow and cash collateral motion (dkt. 5, 14, 15, 29). This Court's written order (dkt. 29) erroneously lists the continued hearing as 3/20/18 instead of 4/17/18 at 2:00 p.m., as orally ordered at the hearing on 3/9/18. Nevertheless, it is appropriate in connection with this Status Conference to address the debtor's current and projected cash flow and related issues.
This Court was not persuaded at the hearing on 3/9/18 that the debtor can generate positive cash flow. The debtor is directed to provide a brief update on any plans to generate positive cash flow from her various businesses and properties. It is also appropriate for other parties in interest to address whether there has been adequate disclosure to date regarding the finances of those businesses and properties. The debtor is cautioned that the declaration due on 3/27/18 must provide comprehensive disclosures regarding those businesses and properties: if the debtor cannot show reasonable prospects for positive cash flow within a reasonable time then this Court might have to grant relief from the automatic stay (upon a proper motion), or convert or dismiss this bankruptcy case, at least if the debtor does not abandon unprofitable businesses or properties.
Employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt. 9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure), including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why were resumes for associates, paralegals, and persons who are "of counsel" to the firm not included? (ii) Has counsel waived or amended the provisions in the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting
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as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined in the parties' papers)?
Proposed special counsel: the Snyder firm (dkt. 36, 37). (i) What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
(ii) What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 4/17/18 at 2:00 p.m., status report due 4/3/18. (see order, dkt. 30).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/9/18:
[no tentative ruling was posted for this hearing]
Debtor(s):
Dana Hollister Represented By
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David A Tilem
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TD AUTO FINANCE, LLC
vs DEBTOR
Docket 349
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
TD Auto Finance LLC Represented By
Randall P Mroczynski
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U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 87
- NONE LISTED -
Debtor(s):
Yvonne Napoleon Represented By Michael Y Lo
Movant(s):
U.S. Bank National Association, as Represented By
Robert P Zahradka Jenelle C Arnold Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
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U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 25
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 27).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Daniel Lee Martinez Represented By Michael E Clark
Movant(s):
U.S. Bank National Association, as Represented By
Tyneia Merritt
Trustee(s):
Kathy A Dockery (TR) Pro Se
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LOANDEPOT.COM, LLC
vs DEBTOR
Docket 27
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 29).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nora Del Rocio Benoit Represented By
Ramiro Flores Munoz
Movant(s):
LoanDepot.com, LLC d/b/a Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
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JPMORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 50
Debtor(s):
Cliffton Cornell Represented By
Edmond Richard McGuire
Joint Debtor(s):
Michelle Cornell Represented By
Edmond Richard McGuire
Trustee(s):
Kathy A Dockery (TR) Pro Se
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U.S BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 31
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Angel Rodriguez-Lara Represented By Raymond Perez
Joint Debtor(s):
Angelica Calva Soto Represented By Raymond Perez
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 9
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting
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to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Angela Knox Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By Cassandra J Richey
Trustee(s):
John J Menchaca (TR) Pro Se
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MAGNUM PROPERTY INVESTMENTS, LLC
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2) and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this
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order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marcos Chavez Pro Se
Movant(s):
Strategic Acquisitions, Inc. Represented By Harris L Cohen
MAGNUM PROPERTY Represented By Harris L Cohen
Trustee(s):
Jason M Rund (TR) Pro Se
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COMPASS ALTERNATIVE INVESTMENTS, LLC
vs DEBTOR
Docket 12
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez (case no. 2:16-bk-10699-NB, dkt. 75) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive
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possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan F Hernandez Pro Se
Movant(s):
COMPASS ALTERNATIVE Represented By Julian K Bach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 33
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Bianca L. Clarke Represented By
D Justin Harelik
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CITYWIDE PROPERTY MANAGEMENT & CONSULTING INC.
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Sung Jin Lee Pro Se
Movant(s):
Citywide Property Management & Represented By
Joseph Cruz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
L BROTHERS INVESTMENT GROUP, INC
vs DEBTOR
Docket 8
Grant in part and continue in part to 8/7/18 at 10:00 a.m. as set forth below. Appearances are not required on 7/17/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower").
Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process
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generally). In this matter, such persons appear to include: Sua Tuimalealiifano (and Karoline Tuimalealiifano, the debtor).
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karoline Tuimalealiifano Pro Se
Movant(s):
L Brothers Investment Group Inc Represented By
Laurie Howell
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 13
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
William C. Cheves Represented By Desiree V Causey
Joint Debtor(s):
Mary J. Cheves Represented By Desiree V Causey
Movant(s):
William C. Cheves Represented By Desiree V Causey Desiree V Causey Desiree V Causey Desiree V Causey
Mary J. Cheves Represented By Desiree V Causey Desiree V Causey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 8
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alejandro Mario Palacio Represented By Axel H Richter
Movant(s):
Alejandro Mario Palacio Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 11
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Audrey L. Newman Represented By Arthur H Lampel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON TRUST CO
vs DEBTOR
Docket 97
Tentative Ruling for 7/17/18:
Grant the motion as set forth in the tentative ruling for 6/12/18 (reproduced below). Appearances are not required.
Reasons: At hearing on 6/12/18, this Court continued the matter for the movant to attempt to negotiate the terms of a stay-current adequate protection order. Meanwhile, on 5/5/29/18, debtors' attorney filed his declaration (dkt. 106) stating that the debtors do not oppose the motion (although the declaration is not linked to the motion) and also stating that the debtors have no interest in the property located at "182151 Monje Street, Rosamond, CA 93560." (Emphasis added.) That address appears to be a typographical error for the property that is the subject of the motion, which lists the address as "2151 Monje Street, Rosamond, CA 93560" (the "Motion Address"). Dkt. 97 at p. 3. See also id., Ex.4, at PDF pp. 40-41 (stating that the debtor Mr. Stansbury has quitclaimed property at the Motion Address to his ex-wife per a 2005 divorce decree).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 6/12/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robert Ulrich Stansbury Represented By
Michelle A Marchisotto Michael Smith
Craig K Streed
Joint Debtor(s):
Cecelia Theresa Stansbury Represented By
Michelle A Marchisotto Michael Smith
Craig K Streed
10:00 AM
Movant(s):
The Bank of New York Mellon Represented By Tyneia Merritt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 39
Tentative Ruling for 7/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 6/26/18 hearing, this Court continued the matter for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 41).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gilbert Alcantara Represented By Dina Farhat
Movant(s):
Nationstar Mortgage LLC as Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PACIFIC UNION FINANCIAL, LLC
vs DEBTOR
Docket 33
Tentative Ruling for 7/17/18:
Continue to 9/4/18 at 10:00 a.m. Appearances are not required on 7/17/18.
At the hearing on 5/1/18, this Court continued the matter for the debtors and movant to finalize their loan modification review and approval or denial process. It appears (dkt. 54 at PDF p.3) that such process is currently ongoing. Accordingly the tentative ruling is to continue this matter again, as set forth above.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 2/27/18 this Court was persuaded to continue this matter for 60 days, instead of taking it off calendar, to allow additional time for the debtor to obtain a loan modification. There is no tentative ruling but the
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parties should be prepared to address the status of approval of any loan modification and whether this matter should go off calendar.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Take this motion for relief from the automatic stay off calendar, in view of this court's order (dkt. 39, para. 14) granting the debtor's motion to commence loan modification program, without prejudice to the movant self-calendaring this motion again if the loan modification program is terminated without a consensual loan modification. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Edison Dawson Represented By Michael E Clark Barry E Borowitz
Movant(s):
Pacific Union Financial, LLC Represented By Brandye N Foreman Darlene C Vigil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NP162, LLC
vs DEBTOR
Docket 42
Tentative Ruling for 7/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 6/26/18 hearing, this Court continued the matter for the parties to negotiate the terms of an adequate protection order. This Court directed the movant to provide notice of the continued hearing but the docket does not reflect such notice - why not? There is no tentative ruling, but the parties should be prepared to address the status of negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1)
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anna Kusnier Represented By Julie J Villalobos
Movant(s):
NP162, LLC, its Successors and Represented By Michelle R Ghidotti Kristin A Zilberstein
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 36
Debtor(s):
Lee Arthur Miller Represented By Christopher J Langley
Joint Debtor(s):
Barbara Jean Miller Represented By Christopher J Langley
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 27
Debtor(s):
Carmen S. Ortiz Represented By Bruce V Rorty
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ZB NA dba CALIFORNIA BANK & TRUST
vs DEBTOR
Docket 11
- NONE LISTED -
Debtor(s):
Ousama Wafaa Karawia Represented By Nicholas M Wajda
Joint Debtor(s):
Maggy Deek Karawia Represented By Nicholas M Wajda
Movant(s):
ZB, N.A. d/b/a California Bank & Represented By
Anthony J Napolitano
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 190
Tentative Ruling for 7/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling.
Background. At the hearing on 5/1/18 this Court continued the matter, and the parties stipulated to a schedule for supplemental briefing (dkt. 209), which this Court approved (dkt. 211). Under that schedule the debtor's brief is due 7/13/18, after the time when this tentative ruling has been prepared.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). At the 4/17/18 hearing, this court continued the matter for the parties to finalize the terms of an adequate protection agreement and directed the movant to give notice of the
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continuance by 4/19/18, which the movant timely did. This court had previously continued the matter from 3/20/18 for this same purpose (see dkt. 201, 203, 205). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This court continued the matter from 3/20/18 at the request of the parties for more time to reach an adequate protection agreement (see dkt. 201, 203, 205). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This matter has been continued
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twice from the hearing on 2/13/18. See Stipulation to Continue (dkt. 193, 197) and orders thereon (dkt. 195, 199). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's late-filed response, dkt. 192).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required. This court continued the hearing on this matter pursuant to the parties' stipulation (dkt. 193) and order thereon (dkt. 195). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's late-filed response, dkt. 192).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodney Edward Donkin Jr Represented By Louis J Esbin
Movant(s):
Wells Fargo Bank, N.A. as Trustee Represented By
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Trustee(s):
Robert P Zahradka Tina R Lyons
Gagan G Vaideeswaran Joseph C Delmotte
Kathy A Dockery (TR) Pro Se
10:00 AM
CITYWIDE PROPERTY MANAGEMENT & CONSULTING INC.
vs DEBTOR
Docket 7
Tentative Ruling for 7/17/18:
Grant request for future in rem relief as provided below, subject to any opposition at the hearing. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Movant's notice of intent to proceed with motion for relief from the automatic stay notwithstanding dismissal (dkt. 12); Movant's notice of continuance of motion and supplemental declaration (dkt. 13).
On 7/10/18, this Court granted interim relief, but continued the matter to this date with respect to Movant's request for future in rem relief and set a 7/11/18 deadline for Movant to serve the papers via overnight mail on the tenant(s) under the lease and via U.S. mail for other persons already served with the motion. On 7/12/18, Movant filed a proof of service reflecting service of the motion on (i) Michael Kim; (ii) Michael Hwang; (iii) Young Hwang; and (iv) Hyun Hwang via U.S. mail (dkt. 13).
Movant did not comply with this Court ruling requiring service on the tenant(s) via overnight mail. Nevertheless, it appears appropriate to excuse such non-
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compliance for the following reasons. First, Movant's method of service still provides advanced notice of this continued hearing to the tenant(s) (i.e. served 7/11/18 + 3 days for service by mail = received by 7/16/18 for 7/17/18 hearing). Second, there is a strong showing of cause to grant future in rem relief in this case and a systemic interest in preserving the integrity of the bankruptcy process.
Movant is cautioned that failure to abide by this Court's orders in future may result in adverse consequences.
Relief notwithstanding future bankruptcy cases.
For the reason stated above, the tentative ruling is to grant future in rem relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Grant as provided below. Appearances are not required.
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Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Kim Pro Se
Movant(s):
Citywide Property Management & Represented By
Joseph Cruz
Trustee(s):
Kathy A Dockery (TR) Pro Se
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WILSHIRE VERMONT HOUSING PARTNERS, LP
vs DEBTOR
Docket 16
Grant as provided below, subject to (1) an explanation why the motion papers were not originally served via expedited means (see OST, dkt. 19, p.3, para."(7)"), and (2) any opposition at the hearing (see OST, dkt. 19, p.2, para. "(5)"). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Application for order shortening time (dkt. 17, 18) and evidence of service (dkt. 21, at PDF pp. 64- 65).
The automatic stay does not apply. Grant the motion under 11 U.S.C. 362(c)
and (j): there is no automatic stay because (a) the debtor's prior case (# 2:18-bk-11518-ER) was dismissed (on 3/29/18) within one year before this case was filed (on 6/18/18), (b) that dismissal was not under 11 U.S.C. 707 (b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to the debtor in personam and as to property of the debtor. See In re Hernandez & Jiminez, Case No. 2:11-bk- 53730-NB, Dkt 40.
In the alternative and in addition, this court grants relief from the automatic stay as follows. (The following matters are not moot, nor are they advisory opinions, because (i) dismissals are not infrequently vacated and (ii) "in rem" relief is relevant notwithstanding dismissal of a bankruptcy case.)
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Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Grant the following relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Ho Keun Lee Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 1
- NONE LISTED -
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
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Adv#: 2:17-01503 Wellgen Standard LLC v. Maximum Legal (California), LLP et al
and (2) Turnover of Property of the Estate Pursuant to 11 U.S.C. § 542 fr. 12/19/17, 03/06/18, 3/20/18, 5/1/18, 6/26/18
Docket 1
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
Richard Pachulski Represented By James KT Hunter
Plaintiff(s):
Wellgen Standard LLC Represented By Faye C Rasch
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay
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James KT Hunter
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Adv#: 2:18-01152 Miller v. Abundo et al
§§ 3439.04(a)(1), 3439.07 and 3439.09; (2) To Avoid Transfer and Recover Fraudulent Transfer Pursuant to 11 U.S.C. §§ 544(b), 548(a)(1)(B), 550, Cal. Civ. Code §§ 3439.04(a)(2), 3439.07 and 3439.09; (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551; (4) For Imposition of Resulting Trust; (5) For Imposition of Constructive Trust; (6) To
Disallow Claim Pursuant to 11 U.S.C. § 502(d); and (7) For Turnover of Property of the Estate Pursuant to 11 U.S.C. § 542(a)
Docket 1
Appearances required. The court has reviewed the parties' joint status report (adv. dkt. 7) and the other filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate
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nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 7/31/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 5/16/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/30/18 Expert(s) - deadline for reports: 12/14/18
Expert(s) - discovery cutoff (if different from above): 1/11/19 Dispositive motions to be heard no later than: 1/22/19
Joint Status Report: 9/18/18
Continued status conference: 10/2/18 at 11:00 a.m. Pretrial conference: TBD
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Anh Tuan Tran Represented By Randy Chang
Defendant(s):
Rodolfo Abundo Represented By Randy Chang
Susan Abundo Represented By Randy Chang
Kirsten Abundo Represented By Randy Chang
Plaintiff(s):
Elissa D Miller Pro Se
Trustee(s):
Elissa Miller (TR) Represented By Jeffrey I Golden
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fr. 6/12/18
Docket 43
Debtor(s):
Letitia Louise Wellington Represented By Sanaz S Bereliani
Movant(s):
Michael D. Madison Sr. Represented By Stella A Havkin
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
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Adv#: 2:18-01068 Los Angeles County Sheriff's Dapartment v. Gandarilla et al
Docket 1
Revised Tentative Ruling for 7/17/18:
Continue to 8/14/18 at 11:00 a.m. for this Court to issue its ruling per the parties' joint status report (adv. dkt. 45). Appearances are not required on 7/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Continue to 8/14/18 at 11:00 a.m. for this Court to issue its ruling per the parties' joint status report (adv. dkt. 45). Appearances are not required on 7/17/18.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 46).
Current issues.
Deadlines: This adversary proceeding has been pending since 2/28/17. This issue regarding Los Angeles County Sheriff's Department's recovery of attorneys' fees appears to have been resolved by Order of this Court (adv. dkt. 40), pending entry of a subsequent order by which the movant will deposit the balance of the fees with the Court.
Proposed order: Movant is directed to lodge a proposed order via LOU
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within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Entry of final judgment (adv. dkt. 42, 46). Proposed order: Movant is directed to lodge a proposed order disposing of this adversary proceeding by summary judgment or similar mechanism via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Mediation. In the event the parties are unable to resolve this adversary proceeding in the manner listed above and/or unresolved issues remain, the tentative ruling is to set a deadline of 7/31/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/19/18:
Appearances required. This Court has reviewed the parties' joint status report (adv. dkt. 30) and the other filed documents and records in this adversary proceeding, as well as relevant documents in the bankruptcy case.
Background. Plaintiff, the Los Angeles County Sheriff's Department ("Sheriff") has filed its complaint in interpleader against the debtor, her Chapter 13 Trustee ("Trustee"), and Cardlock Fuels Systems, Inc. ("Cardlock"). Sheriff levied on funds held in the debtor's bank account at Wells Fargo Bank, NA and received about $32,775.00 (the "Levied Funds") but the debtor and Cardlock dispute who should receive the funds.
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Cardlock asserts that it owns the funds; but the debtor asserts that
Cardlock has only a secured claim to the funds and that those funds should be returned to the debtor and Cardlock will continue being paid over time (without interest). Cardlock is listed as a secured creditor in the amount of
$43,066.84 in the debtor's chapter 13 plan (case dkt. 2, p.5), which this Court previously confirmed (case dkt. 19), and in any event the debtor's plan promises to pay unsecured creditors 100% of their claims (without interest). Cardlock's proof of claim (Claim No. 3-1) asserts that it is owed $45,544.66 as of the petition date, based on a judgment for goods sold, which it asserts is secured by a judgment lien. In other words, the debtor proposes to pay Cardlock over 5 years, without interest (regardless whether Cardlock's claim is treated as secured or unsecured under the plan), and Cardlock seeks immediate payment of approximately 3/4 of the total debt using the Levied Funds.
Sheriff apparently has no reason to care about any of this. Sheriff only seeks a judgment that, among other things, would permit the deposit of the Levied Funds with this Court while restraining all of the defendants from involving Sheriff any further.
Before Sheriff filed the complaint, the debtor attempted to obtain turnover of the funds by filing a motion for turnover (case dkt. 31). This Court issued an order (dkt. 34, the "Non-Turnover Order") denying that motion for the following reasons (copied from that order):
Facts
Neither party provides any copy of any levying documents, or any declarations to support their allegations. Nevertheless, the following facts appear to be undisputed.
Prepetition, on February 21, 2017, at the request of judgment creditor Cardlock, The Los Angeles County Sheriff's Department ("Sheriff") served a Writ of Execution and notice of levy on Wells Fargo Bank, NA ("Bank") where the debtor held a bank account. On February 28, 2017 the debtor filed her bankruptcy petition.
Postpetition, on March 2, 2017, Bank delivered to Sheriff $32,775 (the "Funds"). See dkt. 31, p.3:1-12 and dkt. 33, pp.1:25-2:8.
Legal authority
Neither party cites any authority for their principal arguments.
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The authorities they do cite appear to be mostly the wrong statutes and irrelevant decisions.
The debtor asserts that the Funds are property of the estate under the general principles of 11 U.S.C. 541, without any citation to California law defining when ownership of funds is transferred away from the depositor/debtor. See In re Hernandez, 483 B.R. 713, 720 (9th Cir. BAP 2012) ("Whether a debtor's interest constitutes 'property of the estate' is a federal question to be decided by federal law [but] the nature and extent of the debtor's interest in property must be determined by nonbankruptcy law.") (citations and internal quotation marks omitted, emphasis added).
The debtor next argues that Cardlock and Sheriff should be ordered to return the Funds to the debtor "under 11 U.S.C. [section] 105" (dkt. 31, p.4:6), which is the general authorization for the Bankruptcy Court to issue any order or judgment that is "necessary or appropriate to carry out the provisions of this title." The debtor ignores 11 U.S.C. 542 and 543, which are the specific statutory provisions governing turnover to the estate of property of the estate.
Cardlock argues, also without citation, that when the Funds "were levied" they "ceased being the Debtor's property" - Cardlock does not specify whether the time when the Funds "were levied" means when the writ and notice were served on Bank (prepetition), or when the Funds were delivered by Bank to Sheriff (postpetition). Dkt. 33, p.2:24-25. Cardlock may mean the latter because in the next sentence it states that when the Funds "were delivered from [Bank] to [Sheriff], title to the property was vested in creditor [Cardlock]" (dkt. 33, pp.2:25-3:4) based on a decision from the Seventh Circuit involving escrowed funds. See Fed. Deposit Ins.
Corp. v. Knostman, 966 F.2d 1133, 1142 (7th Cir. 1992). Cardlock does not cite any California law or any decision applying California law, nor any decision involving a levy by a sheriff (as opposed to escrowed funds).
This court declines to perform the parties' research for them.
Nevertheless, this court must determine based on general principles and who has what burden whether to grant or deny the debtor's motion. Accordingly, this court has performed some brief
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research on the following issues.
The debtor had an interest in the Funds as of the petition date
Although this court's brief research suggests that California law is not entirely clear, it appears that when a bank has not yet turned over funds to the sheriff prepetition, the levying creditor only has a lien not an ownership interest in the funds. See Hernandez, 483
B.R. 713, 721 (under Cal. Code Civ. P. 700.140(a)&(e), creditor obtains execution lien on amounts in deposit account at time of service on financial institution, and that lien terminates when the funds are paid to the levying officer, which implies that the debtor's interest is transferred at the latter time). (The statute was amended after Hernandez was decided, including designating paragraph "(e)" as paragraph "(f)," but the amendments do not appear to be material.)
Any postpetition termination of the debtor's interest in the Funds is void
Assuming that Cardlock is correct that the transfer from Bank to Sheriff terminates the debtor's interest in the Funds under California law, Cardlock has not suggested any reason why that transfer would not have violated the automatic stay of 11 U.S.C.
362(a). Therefore any such transfer apparently is void ab initio. See, e.g., In re Gruntz, 202 F.3d 1074 (9th Cir. 2000), and In re Schwartz, 954 F.2d 569 (9th Cir. 1992). (The debtor asserts, dkt. 31, p.3, n.1, that because the transfer from Bank to Sheriff occurred postpetition "the Debtor most likely has grounds to avoid the transfer of the Funds pursuant to 11 U.S.C. 549." This court expresses no opinion on that issue.)
The debtor has neither sought, nor established a basis for, turnover
The debtor cannot use 11 U.S.C. 105 to evade or enlarge the specific statutory provisions that govern turnover: 11 U.S.C. 542 and 543. So one of those latter statutes governs - this court does not decide which one (i.e., whether Bank and/or Sheriff qualify as a
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"custodian" under 11 U.S.C. 101(11) and 543), because for present purposes the issues are the same under each section.
This court also assumes without deciding that the debtor would have standing to seek turnover under 11 U.S.C. 542 or 543 (or, for that matter, standing to seek avoidance under 11 U.S.C. 544-549 and recovery under 550, although as Cardlock points out any such avoidance actions presumably would require an adversary proceeding under Rule 7001, Fed. R. Bankr. P.). Compare In re Cohen, 305 B.R. 886, 891-900 (9th Cir. BAP 2004) (chapter 13 debtor has standing to bring avoidance actions).
So far so good for the debtor's position. But it is not enough for the debtor to show that someone is in possession of property in which the bankruptcy estate has an interest. The debtor also must establish that any persons holding an interest in that property, such as Cardlock, will have their interests adequately protected. See 11
U.S.C. 363(e) (court "shall" provide adequate protection of person's interest in property proposed to be used, upon request); 11 U.S.C. 542(a) (turnover only applies to property that trustee may "use, sell, or lease" or that debtor may exempt, i.e., which is subject to section 363(e)); 11 U.S.C. 543(c)(1) (court shall "protect all entities" to which custodian of property has become obligated).
The debtor has not shown that simply turning over the Funds to the debtor would adequately protect Cardlock, or for that matter that such turnover would be an appropriate use of property of the estate. In sum, the debtor has neither requested relief under the applicable statutory provisions, nor established a basis for such relief.
This court expresses no opinion regarding the remaining arguments raised by Cardlock - e.g., that the debtor lacks "clean hands," or that this case should be converted to chapter 7. It is unnecessary to reach the former issue, and the latter has not been properly presented (in the form of a motion to convert).
Current motions. Returning to Sheriff's interpleader complaint, the following motions are on calendar today.
Motion for default judgment against Trustee (adv. dkt. 19). The Clerk of this Court has entered a default against Trustee; Trustee has not
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responded to Sheriff's motion for a default judgment against her; and the tentative ruling is to grant that motion and enter a judgment substantially in the form attached as Exhibit B to Sheriff's motion. If that tentative ruling is adopted, Sheriff is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Sheriff's motion for a default judgment against Cardlock (adv. dkt. 17), and Cardlock's opposition (adv. dkt. 28) and motion to set aside entry of the Clerk's default and/or any default judgment (adv. dkt. 27). The tentative ruling is to set aside the Clerk's default against Cardlock, for the reasons stated in its motion. That moots Sheriff's motion for a default judgment. If that tentative ruling is adopted, Cardlock is directed to lodge proposed orders on both motions via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Status conference in this adversary proceeding.
Deposit funds in registry. The parties are directed to address why there is any reason not to grant a judgment or order authorizing and directing deposit of the Levied Funds into the registry of this Court, while restraining all of the defendants from involving Sheriff any further (in language substantially in the form proposed for the judgment against Trustee), and reserving any other issues (such as any claim by Sheriff for attorney fees). Although there is no pending motion for such a judgment or order, the tentative ruling is that if all non-defaulting parties agree to such relief then it would be appropriate to grant such relief. Among other things, that might reduce the Sheriff's ongoing attorney fees, to the benefit of all parties.
The tentative ruling is that if all parties agree to the foregoing then this Court should treat that as an oral motion for entry of Local Form F7067- 1.1.ORDER.REGISTRY.FUND entitled "Order on Motion: (A) To Deposit Funds Into the Court's Registry, or (B) To Disburse Funds Out of The Court's Registry." If this tentative ruling is adopted, Sheriff is directed to lodge that proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
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Who is entitled to the Levied Funds. The debtor, Cardlock and
Sheriff are directed to address the following issues.
If debtor seeks recovery under 11 U.S.C. 522(h). The debtor potentially could seek to recover property that the debtor could exempt, pursuant to section 522(h). But as Cardlock points out, the debtor's bankruptcy Schedule C does not purport to exempt the Levied Funds (see case dkt. 1, at PDF p.17). The debtor has not amended those exemptions and perhaps cannot (e.g., it is not clear that the debtor could do so without giving up other exemptions that the debtor might not wish to give up).
If debtor seeks recovery of the Levied Funds as representative of the estate. As pointed out in the Non-Turnover Order, there is some authority that even if there is no applicable exemption the debtor has standing to seek avoidance of the levy on behalf of the estate (e.g., under 11
U.S.C. 549). But that would require commencement of an adversary proceeding.
In addition, Cardlock has pointed out that the debtor did not disclose the existence of these funds in her bankruptcy schedules, and based on that fact Cardlock's proposed Answer (attached to its motion to avoid the Clerk's default) raises various defenses to turning over the funds to the debtor. In addition, if the debtor is not able to exempt the funds then those funds presumably would have to be used for the benefit of the estate and creditors, which probably means that any recovery of the Levied Funds would have to be followed by a distribution of the Levied Funds either (i) for truly necessary expenses (but the debtor has not suggested any such expenses) or else (ii) back to creditors - i.e., the money might essentially go in a circle, from Cardlock/Sheriff to this Court's registry, and then to the debtor for distribution to creditors, including Cardlock.
In sum, there appears to be a substantial risk that the expense and delay for both the debtor and Cardlock will far exceed any potential net benefit to anyone. Therefore the parties should be prepared to address why they cannot agree to some arrangement whereby some portion of the Levied Funds would be paid to Sheriff, to the extent, if any, that Sheriff has a claim for attorney fees or other costs or expenses under applicable law, and then the remainder would be divided between Cardlock and the debtor (either for re-distribution to other creditors, or for the debtor's truly necessary expenses).
None of this has been briefed, and this Court emphasizes that all of
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the foregoing is only one possible resolution. This Court's hope is that the foregoing may suggest a path toward consensual resolution.
If the parties are unable to reach a consensual resolution. If some or all issues remain unresolved, the parties are directed to address the following issues.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. If the parties cannot reach a consensual resolution without the assistance of a mediator, is there any reason why this Court should not order mandatory mediation? Again, this Court's concern is that the expenses to all parties of litigation far exceed the net benefit any party is likely to gain.
Deadlines: This adversary proceeding has been pending since 2/28/17. Even if the parties do not reach a consensual resolution, it appears that there will be very little left to determine in this adversary proceeding - perhaps only whether Sheriff is entitled to attorney fees. The parties are directed to address what issues remain, and whether discovery is needed on those issues or if, instead, they can be resolved through a motion for summary judgment or similar mechanism. Because that seems likely, the tentative ruling is not to set any discovery cutoff or other deadlines at this
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time, but instead to set a continued status conference for 7/17/18 at 11:00
a.m. with a brief status report due 7/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 5/22/18:
Continue to 6/19/18 at 11:00 a.m. to be concurrent with the hearing on the motion of Cardlock Fuels System, Inc. ("Cardlock") to set aside the Clerk's entry of default against it. Appearances are not required on 5/22/18.
Analysis. It appears that the funds levied by the Los Angeles County Sheriff's Department ("Sheriff") might properly belong to the debtor, or to Cardlock (if it can obtain relief from default), or to the bankruptcy estate (given the debtor's alleged nondisclosure in her bankruptcy papers of her claim to the funds at issue). See adv. dkt. 27, Ex.A, at pp.3:11-4:14 (Cardlock's affirmative defenses, asserting that either it or the debtor's bankruptcy estate owns the funds, not the debtor). Until it is determined whether or not the Clerk's default against Cardlock will be vacated, it is premature to address the motion for a default judgment against Cardlock. In addition, given the potential interests of the bankruptcy estate in the funds, and the possible lack of anyone to represent the estate if a default judgment were to be entered against Cardlock, it is premature to enter a default judgment against the other possible representative of the estate - the Chapter 13 Trustee.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Laura Elena Gandarilla Represented By Leonard Pena
Defendant(s):
Laura Elena Gandarilla Represented By Leonard Pena
Cardlock Fuels System, Inc. Represented By Thomas J Tedesco
Plaintiff(s):
Los Angeles County Sheriff's Represented By Jacquelyn H Choi
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18
Docket 1
Tentative Ruling for 7/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Mediation. What is the status of the parties' mediation (see Order, adv. dkt. 36).
Deadlines: This adversary proceeding has been pending since 4/7/17. This Court was persuaded at the prior status conference not to set new deadlines until after mediation. If the matter has not been resolved then the tentative ruling is to set a continued status conference for 8/14/18 at 11:00 a.m., with a brief status report due 7/31/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This Court has reviewed the parties' joint status report (dkt. 35).
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Mediation. The parties' latest status report requests mediation. See adv. dkt. 35, p.3, section E.3. This request is puzzling.
At the 2/27/18 status conference, this Court set a deadline of 3/13/18 for the parties to lodge a proposed mediation order, which was later memorialized in a written order (adv. dkt. 33, 1st ordering paragraph adopting attached tentative ruling for 2/27/18, para. "(2)"). No such proposed mediation order was ever lodged with this Court. This is not the first time that the have ignored this Court's order regarding mediation (see tentative ruling for 2/27/18, para. "(1)," reproduced below).
The tentative ruling is to sanction both counsel $200 for repeatedly disregarding this Court's orders regarding mediation, and to set yet another deadline - 5/15/18 - for the parties to lodge a mediation order. The parties are cautioned that continued disregard of this Court's orders will result in more serious sanctions and/or other consequences.
Deadlines: This adversary proceeding has been pending since 4/7/17. This Court previously has set deadlines (adv. dkt. 29, exhibit, adopting tentative ruling for 1/30/18, para. "(2)"): e.g., a discovery cutoff of 5/1/18. The parties appear to have ignored those deadlines.
Their latest status report states (adv. dkt. 35, p.2, section B.3.) that they both expect to complete discovery by "July, 2018," i.e., after the discovery 5/1/18 cutoff. The parties' discovery schedule also appears to be incompatible with this Court's order regarding the 6/26/18 deadline for dispositive motions to be heard. See adv. dkt. 29.
Neither party has requested an extension of the deadlines previously ordered by this Court (either formally, by motion, or even informally in the status report). In setting deadlines this Court has attempted to apply a careful analysis of the parties' legal theories and factual allegations, the parties' status reports, this Court's available hearing dates, how much time might be needed for mediation, and other matters. Disregarding this Court's orders requires additional work by this Court to re-determine deadlines and/or address the consequences of missed deadlines.
The tentative ruling is to sanction both counsel $100 for ignoring this Court's previously ordered deadlines (with a caution, again, that continued disregard of this Court's orders may lead to greater adverse consequences). The tentative ruling is also to set a deadline of 5/15/18 for the parties to lodge
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a proposed agreed order setting realistic, binding new deadlines. Finally, the tentative ruling is to set a continued status conference for 5/22/18 at 11:00 a.m., the sole anticipated purpose of which will be to address whether the parties have complied with this Court's latest directions (set forth above) and, if not, to address what sanctions to impose. The parties are directed not to file any status report in advance of that status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 5/8/18 at 11:00 a.m. with a brief status report due 4/24/18. Appearances are not required on 2/27/18.
Background. This adversary proceeding has been pending since 4/7/17, and is being jointly administered with Adv. No. 2:17-ap-01551 - all papers are to be filed in this adversary proceeding (adv. dkt. 26). The discovery cutoff and some other deadlines have been set, but no trial date or pretrial conference date has yet been set (adv. dkt. 29). Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 29). This Court previously ordered mediation (adv. dkt. 17) but at the status conference on 12/19/17 the parties reported that they had failed to comply with that order and the parties' latest status report (adv. dkt. 31) requests that they ordered to mediation again.
Mediation. The tentative ruling is to set a deadline of 3/13/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required. The court has reviewed the parties' joint status report (adv. dkt. 24) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (docket number(s) 22, and at the hearing on 12/19/17).
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/13/18
Continued status conference: 2/27/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Trial date and pre-trial schedule: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 12/19/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the status of this adversary proceeding.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 12) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the
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parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/6/17. Expert(s) - deadline for reports: 11/20/17
Expert(s) - discovery cutoff (if different from above): 12/4/17 Dispositive motions to be heard no later than: 1/25/2018 Joint Status Report: 12/5/17
Continued status conference: 12/19/17 at 11:00 a.m. Trial date and pre-trial schedule: To be set at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C Vanderhoof
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:17-01485 Gonzalez v. Macmillan et al
Docket 1
Tentative Ruling for 7/17/18:
Continue to 8/14/18 at 11:00 a.m. as requested by the parties in their joint status report (see adv. dkt. 50), with a brief status report due 7/31/18.
Appearances are not required on 7/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should apprise this court about the status of any appeals or other matters (see dkt. 31, order granting in part plaintiff's motion for summary judgment, and dkt. 35, notice of appeal). The tentative ruling is to set a continued status conference for 7/17/18 at 11:00 a.m., with a brief status report due 7/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/20/18:
Appearances required.
Motion for summary judgment (adv. dkt. 14-18, the "MSJ"); opposition papers (adv. dkt. 22-25); and reply papers (adv. dkt. 26-27). The tentative ruling is to deny in part and grant in part the MSJ, as set forth below.
Legal standards. The legal standards governing motions for summary judgment are well known, do not appear to be disputed by the parties, and need not be repeated in this tentative ruling.
First claim for relief (fraudulent transfer). Although the complaint (adv. dkt.1) asserts fraudulent transfer claims under both California law and the Bankruptcy Code, the MSJ limits this to 11 U.S.C. 548. The MSJ also asserts only constructive, not actual, fraud. See adv. dkt. 14, pp.2:21-3:1.
The complaint alleges less than reasonably equivalent value (11
U.S.C. 548(a)(1)(B)(i)) - namely, transfers by the debtors/defendants for no value from the debtors and/or their revocable trusts (the assets of which apparently could be reached by creditors) to irrevocable trusts. But to establish the elements of a constructively fraudulent transfer the plaintiff must also establish one of three types of insolvency (commonly referred to as "balance sheet," "inadequate capital," or "cash flow" insolvency) or else a transfer to an insider under an "employment contract." See 11 U.S.C. 548(a) (1)(B)(ii)(I)-(IV). There is no allegation about any employment contract, so the plaintiff must establish some type of insolvency.
The MSJ refers to balance sheet insolvency (11 U.S.C. 101(32A)). But the complaint never alleges that type of insolvency, so the plaintiff cannot be granted partial summary judgment as to that element (11 U.S.C. 548(a)(1)(B) (ii)(I)).
The complaint alleges inadequate capital and inadequate cash flow (in language that roughly parallels 11 U.S.C. 548(a)(1)(B)(ii)(II)&(III)). But the MSJ extrapolates that those types of insolvency could be presumed based on
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the bankruptcy schedules many months after the transfer, and from the sheer number of lawsuits and eventual judgments against the defendants and other circumstantial evidence. Those things might (or might not) be persuasive at trial, but they are insufficient to establish a lack of genuine issue of fact.
Second claim for relief (declaratory relief related to nature of the trusts). The complaint (adv. dkt. 1, para. 23) seeks a declaratory judgment (i) that the debtors/defendants are "beneficiaries" of the trusts within the meaning of California Probate Code 15304, (ii) that the benefits the debtors/defendants receive from the trusts are "property of the estate" under 11 U.S.C. 541, and (iii) that the trusts qualify as "self-settled trusts" under California law, which the MSJ uses as shorthand for a trust the assets of which are reachable by creditors.
Various provisions of the Bankruptcy Code define what property is part of the bankruptcy estate:
The bankruptcy estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). It does not include, however, "any power that the debtor may exercise solely for the benefit of another," 11
U.S.C. § 541(b)(1), nor does it include "[p]roperty in which the debtor holds ... only legal title and not an equitable interest." 11
U.S.C. § 541(d). Similarly, the estate does not include property containing "[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law." 11 U.S.C. § 541(c)(2). [In re Cutter, 398 B.R. 6, 18-19 (9th Cir. BAP 2008).]
Under California law:
If the settlor is a beneficiary of a trust created by the settlor and the settlor’s interest is subject to a provision restraining the voluntary or involuntary transfer of the settlor’s interest, the restraint is invalid against transferees or creditors of the settlor. The invalidity of the restraint on transfer does not affect the validity of the trust.
If the settlor is the beneficiary of a trust created by the settlor and the trust instrument provides that the trustee shall pay income or principal or both for the education or support of the beneficiary or gives the trustee discretion to determine the
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amount of income or principal or both to be paid to or for the benefit of the settlor, a transferee or creditor of the settlor may reach the maximum amount that the trustee could pay to or for
the benefit of the settlor under the trust instrument, not exceeding the amount of the settlor’s proportionate contribution to the trust. [California Probate Code 15304]
The California Supreme Court has held that to the extent that the settlor of a trust is also a beneficiary, creditors can reach the property held by the trust:
It is against public policy to permit a man to tie up his property in such a way that he can enjoy it but prevent his creditors from reaching it, and where the settlor makes himself a beneficiary of a trust any restraints in the instrument on the involuntary alienation of his interest are invalid and ineffective. Since [the settlor] was the sole beneficiary, all the property in the trust is subject to the claims of his creditors. [Nelson v. Cal. Trust Co., 33 Cal.2d 501, 501-02 (1949) (emphasis added)]
These principles have been more recently reaffirmed in a decision of the Ninth Circuit Court of Appeals:
[U]nder California law, a settlor of a spendthrift trust cannot also act as beneficiary of that trust (i.e., California law prohibits "self-settled" trusts). See Cal. Prob.Code § 15304(a) (West 1987). California law voids self-settled trusts to prevent individuals from placing their property beyond the reach of their creditors while at the same time still reaping the bounties of such property. See Nelson v. California Trust Co., 33 Cal.2d 501, 202 P.2d 1021,
1021 (Cal. 1949). [In re Moses, 167 F.3d 470, 473 (9th Cir.
1999)]
In addition, the MSJ cites authority that if beneficiaries exercise "excessive" control over a trust then under California law they cannot "shield that trust with an anti-alienation provision lacking true substance." In re Moses, 167 F.3d 470, 473 (9th Cir. 1999) (citation omitted) (emphasis added). See also In re Cutter, 398 B.R. 6, 22 (9th Cir. BAP 2008). MSJ (adv. dkt. 14, p.10:1-14).
The debtors argue that their situation is different from that in Cutter because "the Debtor in Cutter could potentially use all the Trust's principal and income to maintain his standard of living, without limitation" whereas "[t]
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here is no such provision" in the debtors' trusts. Dkt. 22, p.3:22-26 (italics added to case name). That distinction of Cutter (and the other authorities cited above) is unpersuasive.
The MSJ points to the following facts in support of its argument that (i) the debtors are also beneficiaries and (ii) the anti-alienation provisions of the trust lack "true substance." The debtor/defendants do not raise any genuine contrary issues of fact.
The debtors deducted mortgage interest and real estate taxes on their 2015 tax returns. See dkt. 18, p.4:5-9 (and evidence cited therein).
During the "initial period" of the trusts (the earlier of the grantors' deaths or 16 years) the debtors can continue to live in the property rent-free. See Dkt. 18, p.4:10-15 (and evidence cited therein).
During that same period, any net income or excess cash is distributed to the debtors. See Dkt. 18, p.4:16-21 (and evidence cited therein).
The debtors can manage the property as "absolute owners."
See Dkt. 18, p.4:22-28 (and evidence cited therein).
The debtors can loan money to themselves and/or use the property to secure loans to themselves. See Dkt. 18, p.5:2-7 (and evidence cited therein).
During their lifetime, the debtors can make discretionary distributions to their children, and upon their deaths the trust assets are to be distributed to their children. See Dkt. 18, p.5:8-12 (and evidence cited therein).
Based on the foregoing, it appears that the debtors are indeed beneficiaries of the trusts to a large extent, and moreover the anti-alienation provisions of the trust lack "true substance" as that term has been used in the cited authorities. Accordingly, the tentative ruling is to grant the MSJ on the second claim for relief.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20). The parties should be prepared to address whether there are any non- mooted matters left to resolve in this adversary proceeding, if this Court is not persuaded to depart from the foregoing tentative ruling on the MSJ.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/13/18:
Continue this status conference to be concurrent with the hearing on the pending summary judgment motion, which is presently scheduled for 3/20/18 at 11:00 a.m. Appearances are not required on 2/13/18.
This court has reviewed the parties' late-filed joint status report (adv. dkt. 10, 11) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (at the hearing on 12/5/17). See also adv. dkt. 10, 11.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 5) and the other filed documents and records in this adversary
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proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
This court recognizes that, at least at this stage, the attorney who filed the answer (dkt. 4) for both trustees of the trust has also executed the Status Report (dkt. 5) on behalf of one of the defendant trustees (the debtor/defendant) asserting that neither of them can consent to this Bankruptcy Court entering a final judgment because third party beneficiaries of the trust allegedly have a right to have their rights litigated "outside of this venue." Counsel for the answering defendants should be prepared (a) to explain whether this is a Stern objection or something else and (b) whether both answering defendants or only one of them takes this position, and if the former, why he did not execute the status report on behalf of both of them.
Counsel for the plaintiff should be prepared to address whether the plaintiff contends that there are no additional parties who need to be joined, and why.
Mediation. The plaintiff suggests in the Status Report (adv. dkt. 5) that mediation, if any, should not be ordered before dispositive motion(s) are heard, which the plaintiff anticipates will be by 3/1/18. The tentative ruling is to revisit the issue of mediation after that date.
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Deadlines: This adversary proceeding has been pending since 9/26/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 3/1/18 Expert(s) - deadline for reports: 2/20/18
Expert(s) - discovery cutoff (if different from above): 3/1/18 Dispositive motions to be heard no later than: 3/13/18 Joint Status Report: 1/30/18
Continued status conference: 2/13/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 4/10/18 Pretrial conference: 4/17/18 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 4/19/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 4/23/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
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Cynthia B. Martin Represented By Robert S Altagen
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Proof of Claim No.6, and the Macking Trust Proof of Claim No. 5
Docket 95
Revised Tentative Ruling for 7/17/18:
Overrule the debtor's claim objections and allow claims 5 and 6 for the reasons stated in the opposition papers (dkt. 102, 104, 105, 107, 108, 109), except as follows. Appearances required.
Proposed order: The claimants are directed to lodge two separate proposed orders - one for each claim - via LOU within 7 days after the hearing date.
See LBR 9021-1(b)(1)(B). Each order must attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling.
McDonnell claim: $20,000 principal. The principal dollar amount of the McDonnell claim (proof of claim no. 6) is reduced to $20,000, pursuant to Mr. McDonnell's concession that this is the correct amount of his (nondischargeable) claim. See dkt. 108, pp.2:21-3:2 and Judgment, dkt. 107, Ex.A.
McDonnell claim: interest? The parties are directed to address whether interest should be included on that claim, and if so at the State or Federal judgment rate or some other rate, and whether this Court should set a deadline for Mr. McDonnell to file an amended proof of claim showing the calculation of such interest. (The Judgment does not address the interest issue, and although the Judgment references and approves a nondischargeability stipulation the parties have not provided a copy of that stipulation.)
McDonnell service. Counsel for the debtor is directed to address at the hearing the assertion by Mr. McDonnell that he has never received service of documents that the debtor alleges he has served on Mr. McDonnell. See dkt. 105-3, at pp.1:27-2:2.
Procedural defects. Counsel for the debtor is directed to address at the hearing (a) why copies of the proofs of claim were not attached to the
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claim objection (as required by the LBR) and (b) why the debtor combined objections to two claims in the same documents, despite the fact that the objections do not qualify as omnibus claim objections under Rule 3007(d) (Fed. R. Bankr. P.).
Due diligence. Counsel for the debtor is directed to address at the hearing how it is that counsel was not aware of the res judicata issues, and whether the objections satisfy the standards in Rule 9011(b) (Fed. R. Bankr. P.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Willie John Riley Represented By Levi Reuben Uku
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer
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RONALD A. MACKIN, TRUSTEE OF THE MACKIN FAMILY TRUST DTD
vs DEBTOR
Docket 89
Revised Tentative Ruling for 7/17/18:
Grant in part and deny in part as follows. Appearances required.
Overrule the debtor's opposition (dkt. 94). The debtor's objection to the Mackin Trust's standing suffers from two fundamental flaws. First, the debtor fails to address, let alone refute, the res judicata effect of his loss in his prior adversary proceeding against the Mackin Trust. See 102, 104, 105, 107, 108, 109, and see especially Judgment, dkt. 107, Ex.A. On this basis alone the debtor's objection appears to be frivolous.
Second, the Mackin Trust's motion includes prima facie evidence of the assignment of the promissory note and deed of trust to it. The debtor's speculation that perhaps Mr. McDonnell was not authorized to act for The Playforge, LLC is entirely unsupported: the debtor's opposition (dkt. 94, Ex.D) includes information about the registered agent for that entity, but no information about its officers, managing member(s), or other grounds to question Mr. McDonnell's authority to act for that entity.
As for the debtor's defense of an equity cushion, the debtor has provided no explanation or support for his arbitrary increase in his valuation of the property from what he asserted under oath in his bankruptcy schedules.
To the contrary, his wild variation in valuation calls into question the alleged value stated in his bankruptcy schedules. That said, the Mackin Trust has not provided evidence of valuation beyond those same bankruptcy schedules and some material in its reply papers (dkt. 111), so on the present record this Court is not persuaded to find that the Mackin Trust has established a lack of
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adequate protection as "cause" for relief from the automatic stay under 11
U.S.C. 362(d)(1).
Nevertheless, the tentative ruling is that the debtor has shown bad faith and abuse of the bankruptcy system which is an alternative "cause" for some type of relief from the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
As set forth below the tentative ruling is to grant relief in the form of modifying but not terminating the stay.
Bad faith appears to be well established by the following facts. The debtor has engaged in a string of bankruptcy cases and adversary proceedings the primary purpose of which appears to have been to hinder, delay, and defraud the Mackin Trust and other creditors rather than engage in any viable reorganization of the debtor's finances. The debtor has failed to disclose the facts concerning the Hilltop Property which, among other things, persuaded this Court to convert this case to chapter 7. See dkt. 103 (IRS' summary of debtor's wrongdoing leading to conversion). Most recently, according to the Chapter 7 Trustee's unrefuted allegations, the debtor proposed to refinance the subject property but then engaged in woefully inadequate measures to do so, disregarding the lien of the Mackin Trust based on what appears to be frivolous arguments as noted above, all of which appear to have been nothing but a further tactic to hinder, delay, and defraud creditors. See dkt. 101 n.1 and accompanying text.
Responses of the Chapter 7 Trustee (dkt. 101) and the IRS (dkt. 103), and the Movant's Reply (dkt. 110). The tentative ruling is that the Trustee and IRS are correct that the interests of other creditors - particularly unsecured creditors who do not have the protection that the Mackin Trust has - must take precedence over the Mackin Trust's very understandable desire for immediate termination of the automatic stay.
The tentative ruling is to grant modification of the automatic stay as follows. First, the Mackin Trust would be permitted to take steps preliminary to foreclosure, such as any notices relating to the ongoing increase in dollar amounts owed, without actually being able to foreclose for now, subject to being able to renew the motion, by noticing a new self-calendared hearing, to seek further modification or termination of the automatic stay if the Trustee does not proceed expeditiously toward the sale of the property. Second, the Mackin Trust would be able to record an order providing that no future bankruptcy case will affect this property, pursuant to 11 U.S.C. 362(d)(4) and
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the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), as follows:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Willie John Riley Represented By Levi Reuben Uku
Movant(s):
Mackin Living Trust dtd 10/23/93 Represented By
Sally A Williams
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer
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Docket 9
Revised Tentative Ruling for 7/17/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has reviewed the debtor's filed status report (dkt. 17) and the other filed documents in this case.
Secured claims. Why does the debtor's bankruptcy Schedule D (dkt. 18 at PDF p.11) list $0 in secured claims (not even a disputed claim?) even though the status report (dkt. 17) states that the case was filed to stop foreclosure? How can creditor and this Court rely on the accuracy of the bankruptcy schedules in view of such inconsistency?
Income. The debtor's bankruptcy Schedule I (dkt. 18 at PDF pp.19- 20) lists a total of $100/mo. in income taxes, medicare and social security. It lists $0 for net income from operating a business (line 8a) despite listing multiple businesses with alleged income: "YB Design, Inc.," "Management of Rabenu Enterprises, LLC," "Babysitting services," and "Cosmetic Sales." It fails to comply with the instructions in line 8a to "Attach a statement for each
... business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." The debtor appears to be ignoring the requirements to provide disclosure as to his own income and expenses and, under this Court's order (dkt. 9, para.3), to provide equal disclosure with respect to his spouse and their businesses. How can creditors and this Court rely on the accuracy of the bankruptcy schedules and future compliance with orders of this Court in view of such non-compliance?
Deadline for compliance. The tentative ruling is to set a deadline of 7/31/18 for the debtor to file amended bankruptcy schedules correcting not only the foregoing deficiencies that this Court has identified but also any other deficiencies that the debtor and his spouse and the debtor's counsel identify after carefully reviewing the documents that the debtor has filed. If in future this Court discovers other non-compliance with the debtor's obligations to
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provide accurate disclosures and to comply with this Court's orders, this Court may order the dismissal or conversion of this bankruptcy case, or other remedies.
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 8/14/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Benjamin Saeedian Represented By Raymond H. Aver
1:00 PM
Docket 149
Appearances required. There is no tentative ruling, but the debtor should be prepared to address what efforts, if any, it has made to try to resolve the outstanding payroll issue with State Compensation Insurance Fund.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rescue One Ambulance Represented By Michael Jay Berger
Movant(s):
State Compensation Insurance Fund Represented By
Samantha L Brackfield Virginia Hoyt
1:00 PM
Docket 9
Tentative Ruling for 7/17/18:
Continue to the date and time set forth below. Appearances are not required on 7/17/18.
Current issues. This Cout has reviewed debtor's status report (dkt. 55) and other relevant pleadings. This Court does not have any issues to raise sua sponte.
Dates/Deadlines.
Bar date: 6/15/18 (timely served, dkt. 26, 32)
Plan/Disclosure Statement*: TBD. This Court is aware that debtor has requested a somewhat distant deadline (dkt. 55, p. 4). This Court may or may not be persuaded to grant that deadline at the continued status conference.
Continued status conference: 9/18/18 at 1:00 p.m. Brief status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Appearances are not required on 5/22/18.
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Current issues.
This court does not have any issues to raise sua sponte.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (timely served, dkt. 26, 32).
Plan/Disclosure Statement*: This court will discuss setting a deadline for the filing of a draft plan/disclosure statement at the next status conference.
Continued status conference: 7/17/18 at 1:00 p.m. Brief status report due 7/3/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget Motion (dkt. 21). This Court has reviewed Debtor's Supplemental Declaration in Support of the Budget Motion (dkt. 34). Although that declaration addresses many of the concerns raised by this Court and by Strategic Acquisitions, Inc. (dkt. 23), the debtor has failed to provide historical monthly profit and loss statements from the period from 1/1/18 through 3/31/18 as required by this Court's order (dkt. 27, para. 5.a.). The parties should be prepared to address what remedy this Court should impose.
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Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (timely served, dkt. 26, 32).
Plan/Disclosure Statement*: In view of the debtor's declaration about her current and future projected income, the tentative ruling is to vacate the prior deadline to file these documents, and set a new deadline at a future status conference, with the caveat that if the debtor fails to show sufficient diligence in obtaining employment and/or if the estate suffers any substantial losses then this Court might have to dismiss or convert this case.
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor and by the debtor herself.
Current issues. This Court has reviewed the debtor's status report (dkt. 19), the response (dkt. 23) filed by creditor Strategic Acquisitions, Inc. ("Strategic"), and the other filed documents and records in this case.
Prior failed case. The debtor's husband's prior case (no. 17-bk- 19071-NB) was a chapter 13 case that was dismissed on 10/13/17 with a 180-day bar to re-filing for failure to make plan payments or appear at the meeting of creditors (11 U.S.C. 341(a)).
Budget Motion (dkt. 21). First, as Strategic points out, the debtor's bankruptcy Schedule I, line 8a, lists $6,220/mo. of net income from "rental property and from operating a business, profession, or farm" but fails to follow the instructions to "[a]ttach a statement for each property and business
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showing gross receipts, ordinary and necessary business expenses, and the total net monthly income." In addition, as Strategic points out, the debtor may be failing to account for the payment of real property taxes and perhaps also income taxes, and therefore it is not at all clear how the debtor will be able to fund any plan of reorganization.
The tentative ruling is to set a deadline of 4/17/18 for the debtor to file declaration(s) (i) attaching the statement(s) required by the line 8a instructions, (ii) providing complete explanations of any other sources of income (e.g., how long does the debtor anticipate continuing to receive disability payments? does the debtor ancticipate returning to employment, and if so, when?), (iii) explaining whether the debtor is accounting for real estate taxes and income taxes, (iv) explaining how the debtor anticipates generating sufficient income to fund a plan of reorganization, and (v) attaching historical monthly accounts for the period of one year prepetition through 3/31/18.
Second, bankruptcy Schedule J (attached to the budget motion), lines 17c and 17d, list payments to Strategic of $1,750/mo. and to Ropers Majeski of $500/mo. The tentative ruling is to treat those payments as adequate protection payments on account of claims that appear to be secured claims, conditioned on return of such payments in the event that such security interests or claims are avoided or otherwise disallowed.
Third, notice of the motion and the deadline for objections is inadequate. The proof of service fails to attach a service list of creditors, and the debtor checked the box directing creditors to file any oppositions within 14 days' from the date of the proof of service (3/27/18), which would be the date of this hearing. Nevertheless, despite the lack of adequate service or notice, the tentative ruling is that on the present record it appears that it would be more prejudicial to creditors to prevent the debtors from making their proposed expenditures than to permit those expenditures, so the tentative ruling is to grant the budget motion on an interim basis, subject to any objections at a continued hearing simultaneous with the continued status conference date set forth below. This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006, Fed. R. Bankr. P.), but that date is conditioned upon the debtor serving the motion on the entire creditor matrix the day after the current hearing date.
Deadlines/dates. This case was filed on 3/13/18.
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Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: File by 6/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time). This Court is aware that the debtor has requested a much later deadline (dkt. 19, p. 5), but this Court is not aware of any reason why so much time is needed. The debtor should be negotiating with secured creditors and other key constituencies already.
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
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fr. 6/13/17, 6/20/17, 9/19/17, 11/7/17, 1/23/18, 02/13/18, 4/10/18
Docket 1
Tentative Ruling for 7/17/18:
Continue as set forth below. Appearances are not required on 7/17/18.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 9/4/18 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
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Service of voting package. The proof of service (dkt. 140) states
that the voting package has been served on "Secured and Twenty Largest Unsecured Creditors." (Emphasis added.) The voting package should have been served on all creditors. Is the proof of service in error? If so, the tentative ruling is to set a deadline of 4/11/18 for the debtor to file a corrected proof of service. If not, counsel for the debtor should be prepared to address
the dates and procedures for re-balloting and a continued hearing and (ii) not charging attorney fees for correcting this issue.
Disclosure statement (dkt. 134) and plan (dkt. 135), and motion to modify plan (dkt. 142). The debtor has not filed any ballot summary. If sufficient ballots have been received to vote in favor of confirmation by the requisite majorities then the tentative ruling is to approve the disclosure statement on a final basis, grant the motion to modify the plan, and confirm the plan as modified. All of the foregoing is contingent, however, on the debtor filing a sufficient ballot summary no later than 4/11/18.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 7/17/18 at 1:00 p.m. Status report due 7/9/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues.
Plan (dkt. 127) and Disclosure Statement (dkt. 126).
Impairment - Class 2B. The Plan lists Class 2B as unimpaired - is it?
Impairment - Class 4A. The Plan does not specify whether Class 4A is impaired.
DIP Financing. Class 2C appears to consist of the debtor's contemplated postpetition DIP borrowing (dkt. 111, 121). First, classes under the Plan are reserved for prepetition debts, whereas repayment of postpetition DIP financing should be reflected in cash flow projections (Ex.C) (this is not just an academic issue: for example, Classes vote; DIP lenders do not).
Second, Endnote 2C (in Ex.H) appears to relate to this "Class" of DIP fiancing, and it appears to state that the terms of that financing are unknown ("Debtors will have full and accurate loan information as the loan is processed"). The debtors' counsel must address at the hearing whether there is any reason why the Plan cannot be updated to reflect the actual financing terms, which would eliminate the need for any such Endnote.
Stipulation with US Bank. The Plan should attach a copy of the Stipulation (dkt. 124) with creditor U.S. Bank N.A. (as trustee); Wells Fargo Home Mortgage as servicer (collectively, "US Bank"), as it may be modified (see below re possible amendments to that Stipulation). See dkt. 129 (limited objection of US Bank).
US Bank's concerns (dkt. 129). This Court's posted procedures (available at www.cacb.uscourts.gov, under Judge Bason) provide in part:
§ 362: Automatic Stay. (1) Stipulations. Generally, the judge will not approve a stipulation for relief from stay/adequate protection order (“APO”) that purports to be automatically effective ... because there might be equity in the property [Emphasis altered.]
Consistent with this limitation, US Bank agreed to an Adequate Protection Order ("APO") which does not provide for any automatic termination of the automatic stay. Instead it provides (in the APO attachment, at paragraph 6.b.) that in the event of a default:
[US Bank] may file and serve a declaration under penalty of perjury specifying the default, together with a proposed order terminating
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the stay, which the court may grant without further notice or hearing.
More recently, however, US Bank entered into its Stipulation with the
debtors (dkt. 124) which not only includes the above-quoted language about what will happen in the event of a pre-confirmation default but goes on to add another clause. It states:
5. [US Bank] may file and serve a declaration under penalty of
perjury specifying the default, together with a proposed order Terminating the Automatic Stay, which the Court may grant without further notice or hearing, and Creditor (and/or its servicer) may commence any and all action necessary to obtain complete possession of the Subject Property without further notice,
order, or proceeding of this Court. [Emphasis added.] US Bank argues (dkt. 129, p.6:3-12) that this language in the
Stipulation was "taken from" the APO (para. 6.b.), but this is not quite accurate: the emphasized language has been added. Does that additional language mean anything? US Bank now appears to argue that it means nothing - that "the intent was simply to maintain the status quo like it is under the APO" (dkt. 129, p.6:6).
This Court agrees: the emphasized language appears to be surplusage; but unfortunately it is arguably subject to a different interpretation. Because it is unusual for parties to add meaningless language to their stipulations, the emphasized language arguably could be read to mean that US Bank could "commence" all actions necessary to foreclose without any order of this court.
Because of this (and other) ambiguities in the Stipulation this Court added the following caveat in its order approving the Stipulation:
... notwithstanding anything in the Stipulation to the contrary, the automatic stay will not automatically terminate upon a default or conversion of this case except as to Debtors (i.e., no automatic termination as to the bankruptcy estate, so as to preserve any equity that might then exist in the property for the benefit of other creditors) [Dkt. 128, p.2:5-8, emphasis in original]
US Bank now requests "that the Order [approving the Stipulation] be amended to clarify that any pre-confirmation default shall be in accordance with the [Stipulation] at paragraph 5, or in the alternative, pursuant to the existing APO, paragraph 6(b)." Dkt. 129, p.6:10-12. This Court believes the
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simpler solution - both in this case and in all future cases - would be to delete the surplus language in paragraph 5 of the Stipulation. US Bank's counsel should be prepared to address whether they will agree to delete the surplus language in paragraph 5 of the Stipulation in this case and in all future stipulations in any case before this Court.
Similarly, paragraph 13 of the Stipulation ends by stating that in the event the debtors' case is dismissed or converted then not only shall US Bank retain its lien securing the full dollar amount it is owed (less any payments received) but also "the Automatic Stay shall be terminated without further notice, order or proceeding of the Court." (Emphasis added.) US Bank has now agreed to delete this emphasized language. See dkt. 129, pp.5:26- 6:2. Again, US Bank's counsel should be prepared to address whether they will delete this language in all future stipulations in cases before this Court.
Another concern raised by US Bank is that this Court's language in the order approving the Stipulation (quoted above) appears to limit paragraph 6 of the Stipulation, which provides that upon confirmation of debtors' chapter 11 plan "the Automatic Stay shall be deemed terminated as to the Debtors and the estate" and US Bank can pursue its contractual remedies under the loan documents "without further notice, order, or proceeding of this Court." Dkt.
124, p.4:12-18. This Court did not intend to override that provision - the tentative ruling is that upon confirmation of a chapter 11 plan it is entirely appropriate to provide that the automatic stay no longer applies because then the parties have a revised contractual relationship - so US Bank is correct that the order approving the Stipulation is overbroad to the extent that the language added by this Court affects paragraph 6 of the Stipulation.
Based on all of the foregoing, the tentative ruling is that if US Bank will agree to amend its Stipulation in paragraphs 5 and 13 as set forth above (to delete the language about automatic termination of the automatic stay), and leave paragraph 6 unchanged, this Court will approve that Stipulation without the modification that is included in the current order approving the Stipulation. The debtor will need to attach the amended Stipulation to the Plan.
Note: The parties might wish to take the opportunity to review the Stipulation for any other provisions that would benefit from revision. For example, this Court notes that paragraph 13 of the Stipulation starts by providing that "[t]he terms of this Stipulation are contingent upon Debtors' confirming a Chapter 11 Plan." Dkt. 124, p.6:8-8. Read literally this would
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mean that the Stipulation's terms regarding pre-confirmation defaults (para. 5) are contingent upon confirmation, which makes no sense. Other provisions similarly do not appear to be intended to be contingent on confirmation (but it is up to the parties to decide if they wish to clarify such issues).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 127)/Disclosure Statement (dkt. 126)*: 2/27/18 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference, with a revised stipulation with US Bank attached, and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 4/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue this status conference to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtors' apparent need to amend the proposed plan in view of the recent withdrawal of their objection to the prior claim of the Internal Revenue Service ("IRS") in view of the IRS' amended claim (see dkt. 119);
the debtor's failure to file a brief status report (due 1/16/18 per the
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adopted tentative ruling for the 11/7/17 hearing, reproduced below); and
the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the federal government.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Continue to 1/23/18 at 1:00 p.m. to address the following issues. Appearances are not required on 11/7/17.
Reasons: This court is continuing the hearing in light of the response filed by the IRS (dkt. 105) and because (1) if the dollar amount owed to the IRS changes then changes also will be needed to the amended plan (dkt. 107) and amended disclosure statement (dkt. 106) and (2) although the debtor correctly deleted Endnotes 2, 2A, 2B and 2C from Exhibit H, the debtor forgot to delete the references to those (non-existent) endnotes on Exhibits A and E. No later than 1/16/18 the debtor is directed to file an amended plan to cure these issues, if possible, or alternatively a very brief status report (e.g., one or two sentence).
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/19/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
1:00 PM
Current issues.
Monthly Operating Report (dkt. 94). What is the $700 transfer for 8/31/17 (at p.4) entitled "money owed"? The debtor reports one missed payment to Wells Fargo in the amount of $2,167.68 (at p.10), as against onl y
$2,398.12 in her rental property account (p.11) and $1,404.57 in her personal account. Is the debtor losing money? Can the debtor propose a feasible plan of reorganization?
Plan (dkt.92) /Disclosure Statement (dkt. 91). (i) These documents are not signed by the debtors ("/s/" typed signatures are only permitted for limited categories of persons, such as registered CM/ECF users). (ii) The Disclosure Statement contemplates claim objections (dkt. 91, Ex.H, Endnotes 1-2). Why have these issues not been resolved by now? (iii) The Disclosure Statement's Endnotes 2A, 2B, 2C and 5 repeat (and/or misstate) the terms of the Plan. Those endnotes should be deleted. (iv) The Disclosure Statement's Ex.C (income/expenses) is divided into two periods, but the income and expenses appear to be identical in each period. Why should this not be a single period?
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt.92) /Disclosure Statement (dkt. 91)*: 10/24/17 deadline to file amended documents.
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
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Status Report. The debtor is using an outdated form. The current version is Local Form F 2081-1.1.CH11.STATUS.RPT.
Cash collateral motion (dkt. 30). Grant on a final basis, on the same terms as in the interim order (dkt. 58).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/5/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee).
Continued status conference: 9/19/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
2:00 PM
Docket 0
Tentative Ruling for 7/17/18:
This Court has reviewed the debtor's filed status report (dkt. 1511) and has no issues to raise sua sponte. The tentative ruling is to continue this status conference to 11/20/18 at 2:00 p.m., with a brief status report due 11/6/18. Appearances are not required on 7/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
(a) Grant the motion to clarify issues regarding class 8 claims (dkt. 1489) as amended by the supplement (dkt. 1496), (b) issue an order substantially in the form attached as an exhibit to that supplement (the debtor is directed to lodge that proposed order within 7 days after this hearing), and (c) set a continued post-confirmation status conference for 7/17/18 at 2:00 p.m., with a brief status report due 7/6/18. Appearances are not required on 4/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
10:00 AM
Not be Amended to Include a Bar to Refiling; and (2) This Court Should Not Impose Sanctions
fr. 6/28/18
Docket 25
Tentative Ruling for 7/20/18:
Appearances required by debtor's counsel, Peter L. Nisson, Esq, and telephonic appearance required by debtor.
There is no tentative ruling, but the parties should be prepared to address the issues identified in this Court's orders setting this evidentiary hearing regarding possible sanctions against Mr. Nisson (dkt. 24, 25, 31).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/28/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues identified in this Court's order to show cause (dkt. 25) and the related order deny debtor's reconsideration motion (dkt. 24).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Myrna Garcia Lorenzo Represented By Peter L Nisson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 25
Tentative Ruling for 7/20/18:
Please see the tentative ruling for the order to show cause (7/20/18 at 10:00 AM, calendar no. 1).
Tentative Ruling for 6/28/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues identified in this Court's order to show cause (dkt. 25) and the related order deny debtor's reconsideration motion (dkt. 24).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Myrna Garcia Lorenzo Represented By Peter L Nisson
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
Docket 9
Tentative Ruling for 7/20/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling is to continue this status conference to 8/14/18 at 1:00 p.m., as orally ordered at the hearing on 7/17/18. (But, per this Court's order at dkt. 9, p.1:23-24, any time a hearing is held on any matter a status conference is automatically scheduled for the same time.)
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 7/17/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has reviewed the debtor's filed status report (dkt. 17) and the other filed documents in this case.
Secured claims. Why does the debtor's bankruptcy Schedule D (dkt. 18 at PDF p.11) list $0 in secured claims (not even a disputed claim?) even though the status report (dkt. 17) states that the case was filed to stop foreclosure? How can creditor and this Court rely on the accuracy of the bankruptcy schedules in view of such inconsistency?
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Income. The debtor's bankruptcy Schedule I (dkt. 18 at PDF pp.19- 20) lists a total of $100/mo. in income taxes, medicare and social security. It lists $0 for net income from operating a business (line 8a) despite listing multiple businesses with alleged income: "YB Design, Inc.," "Management of Rabenu Enterprises, LLC," "Babysitting services," and "Cosmetic Sales." It fails to comply with the instructions in line 8a to "Attach a statement for each
... business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." The debtor appears to be ignoring the requirements to provide disclosure as to his own income and expenses and, under this Court's order (dkt. 9, para.3), to provide equal disclosure with respect to his spouse and their businesses. How can creditors and this Court rely on the accuracy of the bankruptcy schedules and future compliance with orders of this Court in view of such non-compliance?
Deadline for compliance. The tentative ruling is to set a deadline of 7/31/18 for the debtor to file amended bankruptcy schedules correcting not only the foregoing deficiencies that this Court has identified but also any other deficiencies that the debtor and his spouse and the debtor's counsel identify after carefully reviewing the documents that the debtor has filed. If in future this Court discovers other non-compliance with the debtor's obligations to provide accurate disclosures and to comply with this Court's orders, this Court may order the dismissal or conversion of this bankruptcy case, or other remedies.
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 8/14/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Benjamin Saeedian Represented By Raymond H. Aver
1:00 PM
Docket 21
Grant, subject to the following conditions, and also subject to any opposition at the hearing (shortened time orally granted at the status conference on 7/17/18). Appearances required.
Key documents reviewed (in addition to motion papers): Evidence of service of emergency motion (dkt. 21, at pp. 10-13).
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for
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reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Benjamin Saeedian Represented By Raymond H. Aver
4:00 PM
Docket 36
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling is to deny the motion to vacate the 180-day bar on being a debtor in bankruptcy (dkt. 35), for the reasons stated in this Court's order setting this hearing (dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria O. Ahumada Represented By Ali R Nader
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 29
Tentative Ruling for 8/2/18:
Grant in part and deny in part as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons: The debtor is seeking to avoid both the third priority lien asserted by Select Portfolio Servicing as agent for Deutsche Bank as trustee (collectively, "Select") and the second priority lien of the Franchise Tax Board ("FTB") with this one motion. The tentative ruling is to grant the motion as to Select but deny it without prejudice as to FTB for the following reasons.
Separate motions required. Pursuant to LBR 4003-2(b)(1), a separate notice and motion must be filed for each lien sought to be avoided. Separate motions are important for various reasons: (a) so that separate orders can be entered, which in turn assures (b) that any appeals or motions for reconsideration can deal separately with each motion, and (c) for purposes of a clean record of title. In any event, regardless of the policy reasons, that is the rule, and the debtor has not cited any authority to depart from it.
Select. Notwithstanding the foregoing, in the interests of avoiding needless expense and delay, the tentative ruling is to grant the motion as against one of the two non-responding parties. Accordingly, the tentative ruling is that there is "no just reason for delay" in entering an order granting the motion as to Select, within the meaning of Rule 54(b) (Fed. R. Civ. P.) (incorporated by Rule 7054, Fed. R. Bankr. P.). See also Rule 9002(5) (Fed.
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R. Bankr. P.) (defining judgment to mean any appealable order).
(2) FTB. The debtor may file, serve, and self-calendar a new motion directed to FTB's lien.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis B. Rosales Represented By Lionel E Giron
Movant(s):
Luis B. Rosales Represented By Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Group, LLC, c.0 FCI Lender Services, Inc. and Best Diamond Funding Corp.
Docket 9
Appearances are not required. The tentative ruling is (1) to grant the motion with respect to the third lien of Best Diamond Funding Corp. ("Best Diamond") and (2) to deny the motion without prejudice with respect to the second lien of the Aspen G. Revocable Trust ("Aspen"), all for the following reasons.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Best Diamond. There being no opposition, any evidentiary or other objections have been waived or forfeited. Therefore the tentative ruling is that it is appropriate to grant the motion as to Best Diamond.
In addition, the tentative ruling is that although the motion involves claims against different parties (Best Diamond and Aspen), and therefore the better practice would have been to file two separate motions, nevertheless there is "no just reason for delay" in entering an order granting the motion as to Best Diamond, within the meaning of Rule 54(b) (Fed. R. Civ. P.) (incorporated by Rule 7054, Fed. R. Bankr. P.). See also Rule 9002(5) (Fed.
R. Bankr. P.) (defining judgment to mean any appealable order).
The reasons why there is "no just reason for delay" are that (i) the alternative would be to file and serve a new motion against Best Diamond, which would give Best Diamond a "second bite at the apple" without cause, such as requiring it to show excusable neglect for failing to respond to the current motion, and (ii) such proceedings would involve expense and delay. Therefore a final order can issue against Best Diamond.
Aspen. The tentative ruling is to deny the motion as against Aspen, for the
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following reasons.
Two liens in one motion. As noted above, the better practice would have been to file two separate motions: one for each lien. One reasons that practice is better is so that further proceedings by one party (before this Court or on appeal) do not interfere with the finality of the disposition against the other party. Because the motion has deficiencies as against Aspen, and therefore needs to be amended anyway, the simplest solution is to deny the motion as to Aspen without prejudice, and then a separate motion can be filed against Aspen alone.
Deficiencies in the motion. The tentative ruling is that most of Aspen's evidentiary objections go to the weight of the evidence, not admissibility. For example, Aspen's assertions that the appraisal or the property is too far in time from the petition date to establish the value on the petition date itself is not enough to exclude the appraisal. The time involved is relatively short, and although the property might have increased in value slightly during that time, that difference in value would be minor as compared with the relatively vast difference between the alleged value of the property as compared with the alleged dollar amount of the first lien. Therefore, the appraisal has not been shown to be irrelevant or lacking in foundation or otherwise inadmissible.
Likewise, Aspen is free to argue that the sales of allegedly comparable properties (the "Comps") are not persuasive because of an alleged lack of mathematical precision in adjusting for minor differences in square footage, or the age of the Comps, or any other reason. But that does not make the appraisal inadmissible, now that it is supported by the appraiser's declaration (dkt. 23).
Aspen is more persuasive in pointing out that the alleged dollar amount owed to the first lienholder is not adequately supported. The debtor has attempted to cure that deficiency, but her declaration (dkt. 22) does not actually authenticate any document showing the dollar amount secured by the first lien as of the petition date. She simply states that the first lien is in an alleged dollar amount, without disclosing how she arrived at that figure or providing any documentary evidence.
This evidentiary issue should be fairly easy to cure, so this Court is not persuaded that there is any basis to deny the motion with prejudice as to Aspen. Therefore the tentative ruling is to deny the motion as to Aspen, without prejudice.
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Blanca Estela Rubalcava Represented By Kevin Tang
Movant(s):
Blanca Estela Rubalcava Represented By Kevin Tang Kevin Tang Kevin Tang Kevin Tang Kevin Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
Appearances required.
Key documents reviewed (in addition to motion papers): Patricia Reyes ("Reyes") Opposition (dkt. 26); Declaration of Jihad M. Smaili (dkt. 27); Debtor's Evidentiary Objections and Request to Strike Declaration of Jihad M. Smaili (dkt. 35); Debtor's Reply (dkt. 36).
Current issues.
Timeliness of motion. Reyes objects that the motion is untimely pursuant to LBR 3015-1(b)(7). The tentative ruling is to overrule this objection as follows. First, Reyes has not affirmatively shown any undue prejudice resulting from debtor's delay in filing the motion. Second, this Court's own review of the docket suggests that there was in fact no prejudice to Reyes because debtor's plan stated an intent to file the motion (dkt. 14, PDF pp. 2, 11), and debtor filed her plan within 28 days of the petition date, on 4/14/18.
Evidentiary issues (dkt. 35, pp.2:22-5:9). The tentative ruling is to sustain objection numbers "1" and "2" in full, "3" on the hearsay ground (and the lack of reliability of Zillow, Redfin, and Trulia, at least when not used by a licensed real estate appraiser or other person who could qualify as an expert who generally can rely on hearsay), and "5" (there is no "4") because the Reyes appraisal must be authenticated by the appraiser, not by Reyes' attorney.
Despite sustaining all of these objections, the result is only that there is a disputed issue of fact as to the value of the subject property. Moreover, the debtor's Reply includes new evidence, which is generally improper in a reply. That new evidence may or may not be sufficient to support the debtor's asserted valuation of the subject property. This is an additional reason why
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there are disputed issues of material fact that must be resolved.
Note: Although Reyes' Opposition alleges that there are a number of "substantial omissions and misrepresentations" in the papers filed by the debtor (dkt. 26, p.4:12-21), she does not appear to assert any evidentiary objections based on those alleged facts, nor does she explain how they might be relevant to valuation or other issues in connection with this motion.
Therefore this Court expresses no view on those allegations.
Evidence of Value. There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Laura Fey Perez Represented By Leonard Pena
Movant(s):
Laura Fey Perez Represented By Leonard Pena
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 29
Deny for each of the alternative reasons stated in the opposition (dkt. 32, 34). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Sun Yu Lee Pro Se
Movant(s):
Oligarch Capital LLC Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 44
- NONE LISTED -
Debtor(s):
Randall Allen Rush Represented By Kahlil J McAlpin
Joint Debtor(s):
Jervonia Monique Rush Represented By Kahlil J McAlpin
Movant(s):
Randall Allen Rush Represented By Kahlil J McAlpin Kahlil J McAlpin
Jervonia Monique Rush Represented By Kahlil J McAlpin Kahlil J McAlpin
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 31
- NONE LISTED -
Debtor(s):
Patricia Anne Nevels-Perry Represented By Kahlil J McAlpin
Movant(s):
LIBERTY FUND, LLC Represented By Harris L Cohen
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 70
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jaime Rivera Represented By
David H Chung
Movant(s):
Marshack Hays LLP Represented By Chad V Haes
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
§1307(c)(1)
Docket 54
Grant (dismiss the case under 11 U.S.C. 1307(c)(1) for unreasonable delay by the debtor that is prejudicial to creditors). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rosita Bello Represented By
Matthew D. Resnik
Movant(s):
Sarla Gupta Represented By
Carol G Unruh
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 129
Tentative Ruling for 8/2/18:
Appearances required. There is no tentative ruling. This Court set this status conference in an attempt to clarify the potential issues and possibly save needless expense regarding this objection to the entry of a discharge.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David R Van Zile Represented By Keith F Rouse
Joint Debtor(s):
Lisa Coffin Represented By
Keith F Rouse
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 64
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lisa Elaine Lewis Represented By Thomas B Ure
Movant(s):
Lisa Elaine Lewis Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 113
Appearances required. There is no tentative ruling on the merits, but the parties should be prepared to address (1) whether mandatory abstention applies (28 U.S.C. 1334(c)(2)) in view of the pending action, TSDC, LLC v. Galvan, et al. (N.D. Ohio, Case No. 1:14-cv-02699-CAN) (Ellis decl. para. 10); and alternatively (2) whether discretionary abstention should apply under 28
U.S.C. 1334(c)(1) and In re Tucson Estates, Inc., 912 F.2d 1162, 1166-70 (9th Cir.1990).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gloria Elisa Galvan Represented By Michael E Clark Nancy B Clark Barry E Borowitz
Movant(s):
Gloria Elisa Galvan Represented By Michael E Clark Michael E Clark Nancy B Clark
8:30 AM
Trustee(s):
Nancy B Clark Barry E Borowitz Barry E Borowitz
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 45
- NONE LISTED -
Debtor(s):
Robert E Read Represented By Donna R Dishbak
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 44
- NONE LISTED -
Debtor(s):
Robert E Read Represented By Donna R Dishbak
Movant(s):
Robert E Read Represented By Donna R Dishbak
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 23
The tentative ruling is to sustain the claim objection with a caution to counsel for the debtor that in future he must include a cost/benefit analysis (as required by the posted procedures of Judge Bason). Appearances are not required.
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
Fees. Judge Bason assumes that, because the claim at issue was filed as a priority claim and the claim objection seeks to classify it as a non-priority claim, a cost/benefit analysis would support the decision to prepare and file the objection. Therefore the tentative ruling is to permit counsel to apply for fees for those services.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Diane Lisa Miller Represented By Donald E Iwuchuku
Movant(s):
Diane Lisa Miller Represented By Donald E Iwuchuku
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 16
Continue to 8/30/18 at 8:30 a.m. to address the following issues. Appearances are not required on 8/2/18.
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that the claim objection, if successful, would result in a benefit that exceeds the costs of counsel's fees. However, the debtor failed to include any analysis demonstrating that this is so. No later than 8/16/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection (so as not to further waste the time of this Bankruptcy Court, the claimant, and any other parties in interest in addressing this matter).
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No fees absent specific order. Counsel is prohibited from charging any fees on this matter (including all past, present and future work related to this claim objection) and is directed to return any fees that might be (or might have already been) awarded relative to this matter, unless this Court expressly states in a future adopted tentative ruling or written order that the cost/benefit analysis warrants charging fees.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Geri Lynne Thomas Represented By
D Justin Harelik
Movant(s):
Geri Lynne Thomas Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
by Claimant Juan Antonio Gomez Lopez; Request that claim be disallow
Docket 16
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ronald G Sanchez Represented By David S Hagen
Movant(s):
Ronald G Sanchez Represented By David S Hagen
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 18
- NONE LISTED -
Debtor(s):
Imo John Iboko Represented By Andrew Moher
Movant(s):
Imo John Iboko Represented By Andrew Moher
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 24
Continue to 10/25/18 at 8:30 a.m. The parties have requested a different date (see Stipulation, dkt. 27) but that is not a regular hearing date, so this Court has chosen the next most recent hearing date. In addition, it seems highly likely that any objection to a priority and/or nondischargeable claim will satisfy any cost/benefit analysis, but counsel for the debtor is directed no later than 8/16/18 to file a supplemental declaration including such an analysis.
Appearances are not required on 8/2/18. Reasons:
(1) The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Sonia Noemi Delgado Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 31
Continue to 8/30/18 at 8:30 a.m. to address the following issues. Appearances are not required on 8/2/18.
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
No later than 8/16/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees absent specific order. Counsel is prohibited from charging any fees on this matter (including all past, present and future work related to this claim objection) and is directed to return any fees that might be (or might have already been) awarded relative to this matter, unless this Court expressly states in a future adopted tentative ruling or written order that the
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cost/benefit analysis warrants charging fees.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Jose Lozano Represented By
D Justin Harelik
Movant(s):
Juan Jose Lozano Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
by Claimant American Express National Bank
Docket 22
Continue to 8/30/18 at 8:30 a.m. to address the following issues. Appearances are not required on 8/2/18.
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
No later than 8/16/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees absent specific order. Counsel is prohibited from charging any fees on this matter (including all past, present and future work related to this claim objection) and is directed to return any fees that might be (or might have already been) awarded relative to this matter, unless this Court expressly states in a future adopted tentative ruling or written order that the cost/benefit analysis warrants charging fees.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Jose Lozano Represented By
D Justin Harelik
Movant(s):
Juan Jose Lozano Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
by Claimant American Express National Bank
Docket 20
Continue to 8/30/18 at 8:30 a.m. to address the following issues. Appearances are not required on 8/2/18.
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
No later than 8/16/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees absent specific order. Counsel is prohibited from charging any fees on this matter (including all past, present and future work related to this claim objection) and is directed to return any fees that might be (or might have already been) awarded relative to this matter, unless this Court expressly states in a future adopted tentative ruling or written order that the cost/benefit analysis warrants charging fees.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Jose Lozano Represented By
D Justin Harelik
Movant(s):
Juan Jose Lozano Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 144
Tentative Ruling for 8/2/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This matter was continued from 6/7/18 (see Order approving stipulation, dkt. 153). There is no tentative ruling, but the debtor is directed to appear and provide an explanation as to (a) why no opposition has been filed and (b) why this Court should not convert or dismiss this chapter 13 case pursuant to 11
U.S.C. 1307(c)(4) for debtor's failure to pay postpetition domestic support obligations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Joseph Lawrence Mignogna Jr Represented By Richard T Baum
Movant(s):
Donna Mignogna Represented By Lindsey B Green
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 79
Debtor(s):
Luis Alfonso Duran Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Joint Debtor(s):
Alejandra Janeth Campos Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Movant(s):
Luis Alfonso Duran Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Alejandra Janeth Campos Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 0
Tentative Ruling for 8/2/18:
Appearances required by debtors' attorney and by both of the debtors. The tentative ruling is (1) to vacate the order (dkt. 98) linked to the motion to incur debt and (2) to dismiss this case, with a bar against being debtors in any future bankruptcy case for a period of 180 days, (a) for willful failure of the debtors to abide be this Court's prior orders to appear and to file declarations (see below) and alternatively (b) for willful failure of the debtors to appear in proper prosecution of this case. This Court will prepare the orders.
At the 6/28/18 hearing, no appearances were made at the hearing by debtors, their attorney of record, or any other persons on behalf of debtors. For that reason, this Court (i) continued the matter to the present date--for the Court to consider whether to vacate the prior order linked to this motion (but captioned as an order granting a motion to modify the plan) (dkt.98), (ii) directed each one of the debtors to file their own declaration by 7/12/18 regarding (a) the status of the vehicle purchase and (b) their response to concerns raised in the Order Setting Hearing (dkt. 100), and (iii) directed debtors' counsel and both of the debtors to appear at this continued hearing to show cause why this Court should not sanction each of them for non-appearance in violation of the Order Setting Hearing. See OSC, dkt. 103 and Order Continuing Hearing, dkt. 105. The Court has reviewed the docket, and no declarations have been filed by the debtors. Why not?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 6/28/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised by this Court's Order (dkt. 100) setting this matter for hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Dermont Hill Represented By Daniel King
Joint Debtor(s):
Regina Delorse Hill Represented By Daniel King
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
sanction debtors and their attorney for non-appearance at hearing on June 28, 2018
Docket 103
Tentative Ruling for 8/2/18:
Please see the tentative ruling for the continued hearing on the motion to incur debt in this case (calendar no. 24, 8/2/18 at 8:30 a.m.).
Debtor(s):
Michael Dermont Hill Represented By Daniel King
Joint Debtor(s):
Regina Delorse Hill Represented By Daniel King
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 6/28/18
Docket 23
Tentative Ruling for 8/2/18:
Grant the motion and expunge this bankruptcy case, based on the supplemental evidence (dkt. 30, 31), but without vacating or in any way disturbing any prior grant of in rem relief. See, e.g., Case No. 2:16-bk-17335- NB, dkt. 34. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/28/18:
Continue Ms. Moreno's motion (dkt. 23, 25) to expunge this bankruptcy case (Case No. 2:15-bk-13511-NB) to 8/2/18 at 8:30 a.m. with a deadline of 7/9/18 to file and serve the documents described below. Appearances are not required on 6/28/18.
Required documents:
Declarations. Ms. Moreno's motion is supported by her declaration in English. But she concedes that she does not read or write either English or Spanish (dkt. 23, p.10, para.8). Accordingly, the tentative ruling is that her
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English declaration does not constitute any evidence at all, so the motion is unsupported by any evidence.
The tentative ruling is that Ms. Moreno will need to sign a decaration in Spanish (with an English translation), and that must be supported by the declaration (in English) of a translator certifying (a) that the Spanish declaration signed by Ms. Moreno is a true and correct translation of the English version (with a copy of that English version attached) and (b) that the Spanish version was read out loud to Ms. Moreno and, if necessary, explained to her in Spanish, before she signed it.
Efforts to pursue alleged wrongdoer. The tentative ruling is that Ms. Moreno's declaration must disclose all efforts she has undertaken to seek prosecution of Mr. Munoz (e.g., police reports, any reports to the office of the United States Trustee, etc.). Absent evidence of attempts to pursue Mr. Munoz, the tentative ruling is that Ms. Moreno's denials of any involvement in the bankruptcy petitions lack sufficient support for the extraordinary remedy of expunging the bankruptcy cases.
Proof of service. The proof of service (dkt. 23, last page) does not show service on all creditors in both of the allegedly fraudulently filed bankruptcy cases (see Creditor Matrix, Case No. 2:15-bk-13511-NB and Case No. 2:16- bk-17335-NB), nor on Mr. Jose Munoz (the alleged wrongdoer), nor on Mr. Velentin Moreno-Perez (the debtor's soon-to-be former husband, whose involvement in the alleged fraud is unclear), nor on any entities who were granted in rem relief from the automatic stay (see Case 2:16-bk-17335-NB, dkt. 34, granting such relief to CBB Properties, LLC). The tentative ruling is to required service on all such persons.
Non-disturbance of in rem relief. Ms. Moreno does not explain exactly what is meant by her request to "expunge" this bankruptcy case. The tentative ruling is to interpret that request as follows, and in any event to limit any relief as follows.
Expungement is intended to assist Ms. Moreno to repair her credit with the credit reporting agencies, and with any other person seeking to verify her credit history. Expungement is also intended to eliminate any future consequences of these past bankruptcy cases (see, e.g., 11 U.S.C. 109(g)(1) or 362(c)). Expungement is not intended, however, to vacate or in any way
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disturb any prior grant of in rem relief. See, e.g., Case No. 2:16-bk-17335- NB, dkt. 34 (order granting in rem relief) (the "CBB In Rem Order"). Such relief is still appropriate because it was not necessary for Ms. Moreno to have been a party to any "scheme" under 11 U.S.C. 362(d)(4) for in rem relief to have been warranted. See In re Vazquez (Bankr. C.D. Cal., Case No. 2:16- bk-10699-NB, dkt. 75.
Accordingly, the tentative ruling is that if Ms. Moreno wishes to obtain relief from the CBB In Rem Order, or any other in rem order, she must do so by separate motion or adversary proceeding.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Julia Moreno Represented By
Alan W Forsley
Movant(s):
Julia Moreno Represented By
Alan W Forsley
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 06/07/18, 6/28/18
Docket 63
Tentative Ruling for 8/2/18 (same as for 6/7/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At a hearing on 5/8/18 on Wells Fargo's motion for relief from stay, Wells Fargo withdrew its motion and the parties stated that they believed they could resolve the outstanding escrow issues in the context of this motion. On 7/30/18, Wells Fargo filed a Notice of Withdrawal of Notice of Mortgage Payment Change (Claim 4) (dkt. 89) ("Withdrawal Notice"). There is no tentative ruling, but the parties should be prepared to address whether the Withdrawal Notice moots the debtor's pending objection.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
COPY OF TENATIVE RULINGS ON RELATED MOTION (dkt. 58) FOR RELIEF FROM AUTOMATIC STAY
Tentative Ruling for 5/8/18:
Appearances required.
At the hearing on 3/20/18, this Court continued the matter to this date and
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directed (1) debtor to commence making higher payments to Movant in the amount of $4,079.99 ($3,698.51 P&I + $381.48 escrow); and (2) set deadlines for (a) Movant to file a supplemental declaration regarding recalculation of the appropriate monthly escrow fund payment, and (b) debtor to file a response.
This Court has reviewed Movant's supplemental declaration (dkt. 68) and debtor's response (dkt. 72). The parties should be prepared to address whether they have reached any resolution regarding debtor's contention that Movant has not taken into account any credits received from hazard insurance and county taxes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Grant in part, deny in part, and continue to 4/10/17 at 10:00 a.m., all as set forth below. Appearances required.
Background
The parties appear to agree that the debtor has made monthly payments of $3,698.51 (the normal amortizing principal and interest payments). Those payments were due on the first day of each month, and generally were paid a few days later. See dkt. 8, Ex.5 (movant's spreadsheet) and dkt. 61, Ex.A, & dkt. 62) (debtor's copies of cashier checks). The motion lists some late charges, attorney fees, and other items (dkt. 58, p.7, para.8), but those do not appear to have been included in the movant's spreadsheet (dkt. 58, Ex.5, at PDF pp.30-33), perhaps because the listed amounts are for prepetition periods. In any event, the core of the parties' disagreement appears to involve an escrow impound account to pay real estate taxes and property insurance premiums.
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The debtor's assertions of "improper" escrow impounds are unpersuasive The debtor's declaration (dkt. 61, Tribelsky Decl., para.9, at PDF
p.7:24-28) asserts that the impound is "improper" and that the debtor has "struggled with [movant] Wells Fargo to have them end these impounds." The debtor also declares (dkt. 61, at PDF p.7:16-22) that there was an "improper increase" in monthly payments starting on March 1, 2016, which he believes was due to an escrow impound for taxes and insurance.
The debtor fails to explain why there is anything "improper" about requiring him to pay into an escrow for real estate taxes and insurance. The loan documents (dkt. 8, Ex.1, para.3, pp.4-5) require the debtor to make escrow payments for taxes and insurance premiums on the same date at the payments of principal and interest.
It is true that the movant apparently had not required escrow payments for some unspecified period prior to March 1, 2016. See Notice of Mortgage Payment Change (Official Form 410S1) (the "Change Notice"), filed 1/19/16 on the Claims Register, at PDF pp.5-6 (requiring monthly payments of
$351.96 commencing March 1, 2016). But if the debtor is asserting some sort of waiver that argument is unpersuasive. The Deed of Trust provides (dkt. 58, Ex.1, para.3, pp.4-5) that although the movant may waive the escrow requirement, the movant "may revoke the waiver as to any or all Escrow Items at any time" and then the debtor "shall pay" all escrow amounts.
The debtor apparently just ignored his obligation to pay escrow impound amounts. Instead he has presented evidence (dkt. 61, Ex.B, at PDF pp.38 et seq.) that he paid taxes directly to the tax authorities and insurance premiums directly to the insurers.
It appears that the movant must have credited the debtor's direct payments of taxes and insurance, because its Change Notice filed on 10/18/16 lists a low estimated "Starting balance" of $861.27 as of December 2016 (although that apparently assumes that the debtor would start making his required escrow payments). In any event, the movant''s Change Notice is prima facie evidence of the validity of this underlying calculation in support of its claim, and the debtor has not established that there is anything wrong with the movant's accounting included in its Change Notice filed on 10/18/16.
Similarly, by the time of the next Change Notice it appears that the movant must have once again credited the debtor's direct payments of taxes and insurance because, the escrow account projections ("Part 3") project a required "Starting balance" for March 2018 of only $762.96 (although, again,
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this appears to assume that the debtor will have made certain payments into the escrow account by the start of March 2018). In any event, the debtor has not shown that there is anything wrong with this supporting underlying documentation of the movant's claim.
Despite the deficiencies in the debtor's arguments and evidence, it appears that the motion itself fails to account for the debtor's direct payments of real estate taxes and insurance
The motion asserts (dkt. 58, p.9, para.12.c.) that the debtor was behind three payments of $4,053.45, for a total of $12,160.35, less a suspense account balance of $1,166.12, for a total of $10,994.23 as of approximately 12/12/18 (when the declaration in support of the motion was signed). But unlike the Change Notices the motion does not appear to give the debtor credit for direct payments of real estate taxes and insurance.
Based on the spreadsheet attached to the motion as Exhibit 5 (dkt. 58, at PDF pp.30-33), the alleged shortfall of $10,994.23 appears to be the cumulative sum of all the shortfalls between the $3,698.51 that the debtor was paying each month (the normal amortizing principal and interest payments) and the higher monthly amounts that he should have been paying in order to fund the escrow account. There are no entries in the spreadsheet that appear to reflect the debtor's direct payments of taxes and insurance.
Nor is it possible to rely on the latest Change Notice to determine precisely what the debtor owes. At first glance that Change Notice would appear to have current information because it was filed on 3/5/18, but it provides only a projected shortfall of $762.96 in the escrow account as of March 2018 (3/5/18 Charge Notice at PDF p.6, Part 3, end of first line). That projection probably is too low, because it appears to assume that part of the debtor's monthly payment is credited to the escrow account in January of 2018, and that the debtor will make some very substantial payments in February and March of 2018, and that the real estate taxes that are due in March of 2018 will be paid out of those escrow payments (see id., Part 4, 2d and 5th columns, rows for January, February, and March, including credits of
$1,281.90, $9,810.75, and $354.94, and debit of $1,612.38).
The bottom line is that although the movant has not established precisely what the debtor owes, it has established cause for some sort of relief from the automatic stay - namely, there is "cause" within the meaning of 11 U.S.C. 362(d)(1) in that the debtor has failed for many months to comply
8:30 AM
with his obligations to fund the escrow account, which exposes the movant to the risk that it will have to bear the cost if the debtor fails to pay real estate taxes or insurance (especially if the property were to be damaged or completely burn down). The required adequate protection is for the debtor to cure the deficiency in the escrow account over a reasonable period of time.
The latest Change Notice (filed 3/5/18) can be used as a starting point. It requires that the debtor pay $381.48 per month into the escrow account, in addition to his regular monthly payments of $3,698.51 on account of principal and interest, for total monthly payments of $4,079.99. The escrow payments may have to be adjusted (as noted above, the Change Notice appears to assume that the debtor will have made some very substantial payments by the start of March 2018), but this Court can set a schedule for such adjustment (see below).
Conclusion
The tentative ruling is to set a deadline of 4/1/18 for the debtor (a) to file evidence that he has paid the March 2018 real estate tax payment directly to the taxing authority and (b) to commence making monthly payments of
$381.48 into the escrow account, in addition to his regular monthly payments of $3,698.51 on account of principal and interest, for total monthly payments of $4,079.99.
In addition, the tentative ruling is to set a deadline of 4/1/18 for the movant to file a supplemental declaration showing a calculation of the required escrow balance as of 5/1/18, the required monthly payments for the debtor to cure the deficiency in that escrow balance, and the resulting new total monthly payment that the debtor will have to pay on 5/1/18 and each month thereafter.
Finally, the tentative ruling is to set a continued hearing at the date and time set forth at the start of this tentative ruling, so that the parties and this Court can address what to do if the debtor disputes the movant's calculations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Boaz Tribelsky Represented By Michael F Chekian
Movant(s):
Boaz Tribelsky Represented By Michael F Chekian Michael F Chekian Michael F Chekian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 6/28/18
Docket 54
Tentative Ruling for 8/2/18:
Grant the motion and expunge this bankruptcy case, based on the supplemental evidence (dkt. 62, 63), but without vacating or in any way disturbing any prior grant of in rem relief. See, e.g., Case No. 2:16-bk-17335- NB, dkt. 34. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/28/18:
Continue Ms. Moreno's motion (dkt. 23, 25) to expunge this bankruptcy case (Case No. 2:16-bk-17335-NB) to 8/2/18 at 8:30 a.m. with a deadline of 7/9/18 to file and serve supplemental documents, as described in the tentative ruling for calendar no. 9 (6/28/18 at 8:30 a.m.). Appearances are not required on 6/28/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
8:30 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Julia Moreno Represented By
Alan W Forsley
Movant(s):
Julia Moreno Represented By
Alan W Forsley
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Hrg re: Motion to Withdraw as Attorney For Debtor
Docket 82
- NONE LISTED -
Debtor(s):
Xuri Worthing Webb Represented By Daniel I Barness
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Hrg re: Application for Supplemental Attorney's Fees
Docket 67
Overrule the objection to Mr. Webb's purported lack of standing, but also
overrule both Mr. Webb's objection and the debtor's objection to the fee application, and allow the fees in full, because among other things the retainer agreement cannot reasonably be construed as imposing a flat fee for the services at issue, and the charges for those services are reasonable. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to application papers, dkt. 67):
objections (dkt. 88, 89), the applicant's replies (dkt. 91, 92), sur-replies (dkt.
95, 96).
Standing. Based on this Court's understanding of the relationship between Mr. Webb and Ms. Webb (the debtor), he has a financial interest in the outcome of this fee application (albeit an indirect interest). The dollar amounts at issue might be payable by him, or our of property in which he has an interest, as part of the divorce or other arrangements between Mr. Webb and Ms. Webb. See also 11 U.S.C. 330(a)(2) (contemplating objection by "any party in interest").
The debtor agreed to a flat fee for basic services plus additional hourly fees and another flat fee for all other services. On 5/13/17 the debtor executed Local Form F 3015-1.7.RARA, the "Rights And Responsibilities Agreement Between Debtor And Attorney For Debtor In A Chapter 13 Case (RARA)." Dkt. 91, Ex.B. The debtor also executed a retainer letter dated the
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same day. Dkt. 91, Ex.A (the "Retainer Agreement").
The RARA lists a "Base Fee" of $6,000 (id. p.5); it describes in detail what services are covered by the Base Fee (11 items before the case is filed, and 12 items after the case is filed) (id. pp. 3-4); and it explains that Applicant "may apply to the court" for allowance of Additional Fees for services that are not covered by the Base Fee at the hourly rate of $450 per hour or, "[a] lternatively, [Applicant] may charge a reasonable flat fee for some specified service(s) ...." Id. p.5.
The Retainer Agreement mirrors these provisions. It reiterates the base fee of $6000 for "this project," which it described as "the areas of substituting into your chapter 13 bankruptcy," and in the immediately following paragraph the Retainer Agreement adds:
This retainer agreement does not cover extraordinary matters such as: ... adversary proceedings which may arise in relation to the two disputed liens and the potential dispute with James Leach ... [or] representation in any adversary proceedings, motions, or other hearings of any type with the exception of your 341(a) and confirmation hearing. If you want to hire [Applicant] for any of the above, our hourly rate is $450.00 per hour. [Dkt. 91, Ex.A, at PDF
p.10 (emphasis added).]
In subsequent email correspondence (dkt. 91, Ex. C), the debtor and Mr. Webb expressed an interest in participating in this Court's Loan Modification Management ("LMM") procedures. Applicant expressed a willingness to do that specific additional service for the Court-authorized flat fee of $2,500.
This Court's posted LMM procedures (available from a link on the Court's home page at www.cacb.uscourts.gov), state:
10. LMM Fees. Counsel for the debtor is entitled to receive reasonable compensation for all work involved in connection with the LMM process and shall file an application for allowance of attorney fees and costs with the Court, or alternatively accept a “no look” fee in a reasonable amount not to exceed $2,500 to be paid as an administrative expense. These fees and costs are in addition to those fees and costs incurred in the representation of Debtor in the bankruptcy case.
When Applicant stated that her flat fee would be $2,500 for this service, Mr. Webb asked, "if we give you all the information, and all you do is
8:30 AM
enter it online, and then if it were to be declined, why would it cost $2,500? shouldn't your billing only be for the time spent on it?" Dkt. 91, Ex.C, email (5/29/17 at 4:48 p.m.). Applicant responded, "It[']s not that simple. It[']s months of back and forth with the lender. It[']s very time consuming ..." and "If we charged hourly, it would end up costing a lot more." Dkt. 91, Ex.C, email (5/29/17 at 4:53 p.m. and 5:08 p.m.).
Applicant is entirely correct, and Mr. Webb's conception of the LMM process is completely unrealistic. This Court's LMM procedures state:
The $2,500 fee shall include:
Filing of the Motion and Order;
Preparation of the Initial LMM Package
Preparation of any additional forms which may be required throughout the LMM
Submission of all documentation through the Portal
Filing of other required pleadings and preparation of proposed orders and settlement papers, as applicable;
Communicating with Creditor and Program Manager, including communications through the Portal;
Attendance at LMM Conferences and Court hearings; and
Review of all modified loan documents.
Moreover, the Court's docket reflects that the LMM services in this particular case were extraordinarliy extensive. The LMM period was extended three separate times while Applicant was representing the debtor. See Orders at dkt. 43, 50, 57. The printout of the LMM services attached to the last motion to extend the time (dkt. 52) is fourty-eight pages long!
In addition to the Base Fee of $6,000 for the basic services listed in the RARA, and the $2,500 flat fee for the LMM program, Applicant is entitled to the hourly rate of $450.00 per hour for additional services. Those hourly rate fees are more than adequately supported by (a) the extremely detailed records of time spent, broken down into tenths of an hour, for a total of twenty-four pages of time records! (dkt. 67, Ex.A), (b) the narrative description of the services rendered (dkt. 67 pp.2-6), and (c) the occasions on which this Court has first-hand knowledge of the applicant's services, including documents filed with this Court and appearances at hearings, all of which were of consistently high quality and, combined with the daily time records, reflect reasonable and efficient billing.
Applicant has provided correspondence (redacted to protect sensitive
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information) in which it is abundantly clear that the debtor and Mr. Webb were well aware that Applicant was charging hourly fees. For example, an email dated 6/19/17 at 6:21 p.m. states:
The stipulation work is taking longer than anticipated so we need an additional deposit of $5K that we will put into trust and bill against. [Dkt. 91, Ex.D, bottom of second page (emphasis added)]
Mr. Webb responds the next day, "Can the extra be paid through the plan?" Id. (middle of page). In other words, this is further evidence of the obvious: both Mr. Webb and the debtor clearly understood that the "extra" legal fees were being incurred.
Another email to the debtor, dated 11/7/17 at 4:20 p.m., states:
I really don't know what to say to you or William that has not been said before. Please keep in mind that we try to keep legal fees to
a minimum but we have to bill for every single email and those are really adding up. [Dkt. 91, Ex.F (emphasis added).]
Another email, dated 11/20/17 at 12:33 p.m., includes Applicant's caution:
You [Mr. Webb] and Deborah [the debtor] need to get on the same page or work out a compromise of some sort because all the back and forth is only running up legal fees in her case. [Dkt. 91, Ex.D, penultimate page (emphasis added).]
Another email, dated 9/26/17, thanks Applicant "for your work on this challenging case." Dkt. 91, Ex.G (emphasis added).
In the face of all of this evidence, it is nothing short of outrageous for the debtor and Mr. Webb to argue, as they have done, (i) that they expected all the work to be done without any charges for hourly fees, and (ii) that the matters that were handled were not complex or that the fees for the services rendered were not reasonable.
Conclusion. For all of the foregoing reasons, the tentative ruling is to award the entire amount of the requested fees and expenses under 11 U.S.C. 330.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
8:30 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Xuri Worthing Webb Represented By Daniel I Barness
Movant(s):
Eliza Ghanooni Represented By Eliza Ghanooni
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Cont'd hrg re: Objection to Claim of JPMorgan Chase Bank N.A., Claims Register No. 2
fr. 12/7/17, 1/11/18, 03/08/18, 05/03/18,
6/7/18
Docket 38
Tentative Ruling for 8/2/18:
Appearances are not required. This matter has been mooted by the dismissal of the debtor in this case on 6/14/18. See Order, dkt. 74 and Notice, dkt. 75.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Appearances required.
This matter has been repeatedly continued from 12/7/17 to the present. See, e.g., dkt. 54, 62. Now the debtor has once again extended negotiations on the attempted loan modification (see dkt. 64) and is seeking yet another continuance of the hearings on this claim objection and confirmation (dkt. 70, 71). Why has this matter not been resolved? Is the debtor failing to appear in proper prosecution of this matter (see Order, dkt. 72, denying further continuance)?
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/3/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/8/18 hearing, this court continued the matter at the debtor's request for more time to finalize a loan modification and/or pursue mediation with the claimant (see dkt. 54). There is no tentative ruling, but the parties should be prepared to address the status of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/8/18:
Continue to 5/3/18 at 8:30 a.m. per the debtor's request for more time to finalize a loan modification and/or pursue mediation with the claimant (see dkt. 54). Appearances are not required on 3/8/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
8:30 AM
appropriate for disposition at this hearing.
Tentative Ruling for 1/11/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 12/7/17 hearing on this matter, this court was persuaded to continue this matter. What is the current status of this matter?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/7/17:
Deny for the reasons stated in the Opposition (dkt. 46). If the debtor wishes to obtain more discovery regarding older records, she can seek such discovery using the normal procedures for doing so (subject to the normal limitations on any discovery). Appearances are not required.
Note: Counsel did not comply with the Local Bankruptcy Rules' requirement to attach a copy of the proof of claim to the objection. Nor did counsel comply with Judge Bason's posted procedures (at www.cacb.uscourts.gov) requiring a cost/benefit analysis for any claim objection (although the nature of the claim, and the provisions of the debtor's latest amended plan, dkt. 37, suggest that the cost/benefit analysis is favorable to bringing any meritorious objection). In future, counsel should comply with those requirements.
Proposed order: Creditor National Funding, Inc. is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
If appearances are not required at the start of this tentative ruling but you
8:30 AM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Xuri Worthing Webb Represented By Daniel I Barness
Movant(s):
Xuri Worthing Webb Represented By Daniel I Barness Daniel I Barness
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 04/05/18, 05/03/18, 06/07/18
Docket 40
Debtor(s):
Felisa Dee Richards Represented By Eliza Ghanooni
Movant(s):
Felisa Dee Richards Represented By Eliza Ghanooni Eliza Ghanooni
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 6/28/18
Docket 22
Tentative Ruling for 8/2/18:
Deny as moot and/or for lack of prosecution. Appearances are not required.
The tentative ruling for the 6/28/18 hearing, which was not opposed and therefore because this Court's adopted ruling, directed debtor's counsel to file either a withdrawal of the claim objection or a supplemental declaration. No withdrawal or declaration appears on the docket.
Meanwhile the debtor has filed a fourth amended plan (dkt. 26) and the claimant has withdrawn its objection to confirmation (see dkt. 27) so it appears that the parties have settled their disputes, thereby mooting this claim objection. Alternatively, by failing to file either a withdrawal or declaration (as this Court directed) the debtor has failed to prosecute this matter so it will be denied for lack of prosecution. For these alternative reasons, the tentative ruling is to deny the claim objection.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/28/18:
Continue to 8/2/18 at 8:30 a.m. to address the following issues. Appearances
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are not required on 6/28/18. Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
No later than 7/9/18 the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No additional fees absent specific order. Counsel is prohibited from charging any additional fees related to this continuance and any supplemental papers addressing the cost/benefit analysis, unless this Court expressly states in a future tentative ruling or written order that such fees may be charged.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Luis Alfaro Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Amalia Alfaro Represented By Rebecca Tomilowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Jerson Estrada; request claim to be disallowed fr. 6/28/18
Docket 24
Grant, with a caution that in future counsel for the debtor must include a cost/benefit analysis in connection with every claim objection. (In this instance that requirement is being excused because of the nature of the dispute at issue and because the proposed distributions (dkt. 29) appear to make the cost of this claim objection worth the attorney fees involved in prosecuting it; but in future this Court does not intend to do the analysis for the movant.) Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hossein Daneshvar Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 39
- NONE LISTED -
Debtor(s):
Paige Lynne Cross Represented By Kahlil J McAlpin
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 36
Debtor(s):
Maria O. Ahumada Represented By Ali R Nader
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
1:00 PM
Docket 161
Appearances required. Deny for the reasons stated in the opposition of Transamerica Life Insurance Company and its servicing agent (dkt. 173, 174), and for the following additional reasons.
"[N]o authority exists for "reinstating" an automatic stay that has been lifted." See In re Canter, 299 F.3d 1150, 1155 n.1 (9th Cir. 2002).
The debtor's remedy (if any) would be to seek injunctive relief, which would have required an adversary proceeding and also would have required sufficient grounds for injunctive relief (a difficult burden in view of the parties' earlier stipulation and this Court's order approving it, dkt. 67, 84). See In re Ramirez, 188 B.R. 413, 416 (9th Cir. BAP 1995) (Klein, J. concurring) ("In order to have a vacated stay `reimposed,' one must ordinarily file an adversary proceeding seeking an injunction under 11 U.S.C. § 105.") (citations omitted).
Alternatively, the debtor conceivably could have sought reconsideration under Rule 9024 (Fed. R. Banrk. P.) if there were newly discovered evidence, a change in the law, or other grounds satisfying the elements of that rule. But the debtor has neither briefed nor establish such grounds. See In re Gledhill, 76 F.3d 1070, 1078-80 (10th Cir. 1996). See generally In re Wishon, 410 B.R. 295, 307-310 (Bankr. D. Or. 2009) (discussing foregoing concepts and declining to reimpose automatic stay).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
10:00 AM
Docket 457
Tentative Ruling for 8/3/18:
Please see the tentative ruling for the status conference (calendar no. 4, 8/3/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Docket 461
Tentative Ruling for 8/3/18:
Please see the tentative ruling for the status conference (calendar no. 4, 8/3/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
10:00 AM
fr. 7/10/18, 7/16/18
Docket 351
Tentative Ruling for 8/3/18:
Please see the tentative ruling for the status conference (calendar no. 4, 8/3/18 at 10:00 a.m.).
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
10:00 AM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18
Docket 1
Tentative Ruling for 8/3/18:
Appearances required. The tentative rulings are set forth below. In addition, the tentative ruling is to set a continued status conference on 8/16/18 at 10:00 a.m., or such alternative time as may be ordered at the hearing.
Current issues.
Motion to Confirm Dean Rallis as Agent (dkt. 536). Grant (approve the appointment of Dean Rallis, Esq. as Agent) under the Term Sheet, as amended (see below), and subject to the provisions of this Court's order approving the settlement (dkt. 528, paragraphs 3, 4, and 6-8). The tentative ruling to grant this motion is based on the representation in the motion (dkt. 536, p.9:5-9) that the parties who objected/reserved their rights to object have now consented to the appointment of Mr. Ralis. (This Court disregards the invective, id. n.3 & accompanying text.) If that is incorrect then this tentative ruling is subject to any opposition at the hearing (see OST, dkt. 538). This tentative ruling is also based on this Court's review of the other relevant documents. See dkt. 495 (selection of proposed agent), 528 (order approving settlement), 531 (objection), 535 (Committee support), 536 (motion), Application for Order Shortening Time (dkt. 537, 540) and evidence of service (dkt. 541).
Proposed order: Counsel for the debtor is directed to lodge a proposed
order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
9019 Motion (see Term Sheet, dkt. 445, 528). This Court's Order (dkt. 528) approving Settlement directed the parties to prepare, sign and file a final version of the "Term Sheet" reflecting certain modifications. This Court notes that the debtor appears to have circulated a revised Term Sheet (dkt. 536, Ex.A) that incorporates the changes discussed on the record, although that revised Term Sheet is not "redlined" and this Court has not engaged in
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any line-by-line review of its terms. In any event, the parties are directed to provide a status report on when a declaration will be filed with this Court memorializing the fully executed final Term Sheet.
Motion to Extend Time to Assume or Reject Lease (dkt. 457). The tentative ruling is to continue this motion to the date and time of the continued status conference, for the authorized Agent to consider and take a position on the merits of this motion.
Analysis: Although the debtor argues (e.g., in dkt. 534) that she is prejudiced by any lack of immediate decision on pending matters, the tentative ruling is that the debtor has not established undue prejudice because of (i) the debtor's own delay in selecting a nominee to be the Agent,
(ii) the debtor's ability to engage in numerous other activities to attempt to turn around her finances without having to wait for those particular pending matters to be resolved, and (iii) the fact that, as this Court interprets the deadlines in the Term Sheet, "Approval" of the settlement did not occur until "entry" of an order approving the settlement (see dkt. 474, Ex.C, section 1, 1st paragraph, penultimate sentence), and the oral ruling was not entered on the docket, only the written order (dkt. 528) was entered, so the time of Approval (which commences the time for the debtor to perform various tasks under the Term Sheet) did not commence until entry of that written order on 7/25/18.
Motion to Assume and Assign 1629 Griffith Lease (Presbytery) (dkt. 351). Continue to the date and time of the continued status conference, for the authorized Agent to consider the merits of this motion, for the same reasons as stated in section (1)(c) of this tentative ruling, above.
Motion to Expand Scope of Kaplan Emplolyment (dkt. 461, 480, 497, 505, 534). Continue to the date and time of the continued status conference, for the authorized Agent to consider the merits of this motion, for the same reasons as stated in section (1)(c) of this tentative ruling, above.
Scheduling Conference re: Evidentiary Hearing on Motion to Assume 1356 Palmetto Lease (Bridge Tavern/Villain's) (dkt. 187). At the 7/18/18 hearing, this Court was informed that the proposed assignee/buyer had withdrawns. This Court subsequently issued an Order (dkt. 501) deeming the portion of the motion that sought to assign the lease moot and withdrawn, and continuing the portion of the motion that seeks to assume the least to this hearing solely for scheduling further proceedings on this motion. The parties should be prepared to address a schedule for this motion and/or
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whether to continue the scheduling matters so that the Agent can determine whether or not to pursue this motion and related matters.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD.
Continued status conference: Date and time set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/16/18:
Appearances required. The tentative rulings are set forth below. In addition, the tentative ruling is to set a continued status conference on 7/27/18 at 9:00 a.m., or such alternative time as may be ordered at the hearing.
Current issues.
9019 Motion (see Term Sheet, dkt. 445). This Court will address the objections filed by Mr. Casanova (dkt. 465, 466) and The Presbytery of the Pacific (the "Presbytery") (dkt. 467) and the replies filed by the debtor (dkt. 472) and by the Archbishop/Institute and the Bird Nest (dkt. 474). Among other things, this Court will address whether the Term Sheet can be approved without the further documentation that is contemplated by the settling parties. In that regard, the parties should address the proposed amendment to paragraph 6 of the Term Sheet. See dkt. 474, Ex.C.
This Court expresses no present opinion on those issues. This Court is intentionally withholding any further tentative ruling on those matters so as not to disrupt potential settlement discussions among those parties, but if the parties have not agreed to the proposed amendment to paragraph 6 (or some
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other resolution) then this Court intends to provide a tentative ruling at the commencement of the hearing.
The parties are encouraged to meet and confer about the foregoing issues. If, at the end of the hearing, there are issues that remain to be addressed, then the parties should be prepared to address whether this Court should set a continued hearing on the date and time specified at the start of this tentative ruling or some other date.
Stay relief motion (appellate litigation with Bird Nest and Archbishop/Institute) (dkt. 68). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Exclusivity motion (dkt. 308, 348, 422). Continue to the date and time set forth at the start of this tentative ruling, and meanwhile extend exclusivity for the same amount of time, on the same terms and conditions as this Court's Prior Order (dkt. 422) - i.e., no incurring of fees or expenses for plan-related work. This Court calculates that the extensions would be as follows: (i) The 120-day period specified in section 1121(c)(2) and (d)(1) (deadline for filing a plan) will be further extended from 8/15/18 (see dkt. 422) to and including 9/19/18, and (ii) the 180-day period specified in section 1121 (c)(3) and (d)(1) (deadline for acceptance of plan by impaired classes) will be further extended from 10/15/18 (see dkt. 422) to and including 11/19/18.
Cash Collateral motion (dkt. 5). Continue to the date and time set forth at the start of this tentative ruling, and meanwhile extend the interim authorized use of cash collateral through and including the conclusion of the continued hearing subject to the same terms and conditions as previously authorized by this Court (see dkt. 29, 79, 239, 244, 347, 413), if this motion is not mooted by the disposition of the settlement motion.
Bridge Tavern, LLC asset sale motion (dkt. 112). Continue to the date and time set forth at the start of this tentative ruling.
Villain's Tavern reopening motion (dkt. 214). Grant. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Trustee appointment motion (dkt. 332). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Security Deposit refund motion (dkt. 350). Grant. Proposed order:
Movant is directed to lodge a proposed order via LOU within 7 days after the
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hearing date. See LBR 9021-1(b)(1)(B).
Budget motion (dkt. 96). Extend the interim authorization through and including the date of the continued hearing and meanwhile approve the budget subject to the same terms and conditions as previously authorized by the Court (see dkt. 340), if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Bird Nest) (dkt. 292). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Institute) (dkt. 296). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Archbishop) (dkt. 294). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Vehicle refinance motion (dkt. 216). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Vehicle relief from Stay motion (dkt. 349). The hearing on this motion has been vacated, and this matter is off calendar (see Adequate Protection Order, dkt. 444).
Motion to Assume and Assign 1629 Griffith Lease (dkt. 351). Continue to the date and time set forth at the start of this tentative ruling.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD.
Continued status conference: Date and time set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/22/18:
Appearances required.
Current issues.
Urbanlime/Haro employment (dkt. 93, 253), Bridge Tavern (Villain's) Reopening Motion (dkt. 214, previously granted, dkt. 339, but rescheduled per dkt.369 para. 4.5), Sale Motion (dkt. 112, temporarily denied, dkt. 369, 385) and Lease Assignment Motion (dkt. 187, re-set for hearing, dkt. 388). The parties should be prepared to address the issues set forth in this Court's orders (dkt. 369, 378, 385, 388) setting this hearing.
Motion to extend exclusivity (dkt. 308, 312, 333, 348). The tentative ruling is to preserve the status quo by:
prohibiting the estate from incurring any fees or expenses relative to any contemplated plan between time this tentative ruling is posted and the conclusion of the hearing on the motion to appoint a trustee (dkt. 332, the "Trustee Motion"), currently scheduled for 7/10/18 at 2:00 p.m;
if the Trustee Motion is denied, then extending exclusivity through at least 8/14/18 (any further extension will be addressed at the hearing on 7/10/18 at 2:00 p.m.), so that Mr. Tilem will have the time he has stated he would need to draft a plan (approximately 30 days); and
if the Trustee motion is granted, then terminate exclusivity. (c) Cash collateral motion (dkt. 5, 14, 15, 29, 74, 151, 152, 163, 164,
167, 168, 171, 172, 176, 185, 244). The tentative ruling is to continue this matter to 7/10/18 at 2:00 p.m., and meanwhile authorize the continued use of cash collateral through the conclusion of that continued hearing.
(d) Relief from stay motion (dkt. 68, 79, 141, 147, 154, 162, 222 section v., 270, 312). The tentative ruling is to continue this matter to 7/10/18 at 2:00 p.m.
Expansion of Insul employment (dkt. 305). Please see calendar no. 2 (6/22/18 at 10:00 a.m.).
Hearings on 7/10/18. Some matters in this case have been self- calendared for 7/10/18 at 1:00 p.m. The tentative ruling is that all matters set for 7/10/18 in this case will be heard at 2:00 p.m.
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Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 7/10/18 at 2:00 p.m., status report due 7/5/18 at noon.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
This court anticipates posting a tentative ruling at a later time. [Note: no further tentative ruling was posted.]
Tentative Ruling for 5/7/18:
[See Memorialization of Tentative Rulings for 5/7/18 (dkt. 234, 236, 238, 239)]
Tentative Ruling for 5/3/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The only issue this Court intends to address is a continued hearing date in view of the last-minute papers that were filed, to fit the parties' and this Court's own needs.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear.
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash flow and cash collateral motion (dkt. 5, 14, 15, 29). This Court's written order (dkt. 29) erroneously lists the continued hearing as 3/20/18 instead of 4/17/18 at 2:00 p.m., as orally ordered at the hearing on 3/9/18. Nevertheless, it is appropriate in connection with this Status Conference to address the debtor's current and projected cash flow and related issues.
This Court was not persuaded at the hearing on 3/9/18 that the debtor can generate positive cash flow. The debtor is directed to provide a brief update on any plans to generate positive cash flow from her various businesses and properties. It is also appropriate for other parties in interest to address whether there has been adequate disclosure to date regarding the finances of those businesses and properties. The debtor is cautioned that the declaration due on 3/27/18 must provide comprehensive disclosures regarding those businesses and properties: if the debtor cannot show reasonable prospects for positive cash flow within a reasonable time then this Court might have to grant relief from the automatic stay (upon a proper motion), or convert or dismiss this bankruptcy case, at least if the debtor does not abandon unprofitable businesses or properties.
Employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt. 9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure), including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why were resumes for associates, paralegals, and persons who are "of counsel" to
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the firm not included? (ii) Has counsel waived or amended the provisions in the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined in the parties' papers)?
Proposed special counsel: the Snyder firm (dkt. 36, 37). (i) What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
(ii) What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 4/17/18 at 2:00 p.m., status report due 4/3/18. (see order, dkt. 30).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/9/18:
[no tentative ruling was posted for this hearing]
Debtor(s):
Dana Hollister Represented By David A Tilem
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Property Lease
fr. 6/12/18, 6/22/18, 7/18/18
Docket 187
Tentative Ruling for 8/3/18:
Please see the tentative ruling for the status conference (calendar no. 4, 8/3/18 at 10:00 a.m.).
Tentative Ruling for 7/18/18:
Appearances required. There is no tentative ruling. The parties should be prepared to put on their evidence and make their arguments regarding adequate assurance of future performance. See Orders (dkt. 417, 473).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
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Debtor(s):
Dana Hollister Represented By David A Tilem
10:00 AM
Docket 536
Tentative Ruling for 8/3/18:
Please see the tentative ruling for the status conference (calendar no. 4, 8/3/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel
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Hrg re: Motion for relief from stay [RP]
(21535 & 21555 Marie Street, Perris, CA 92570)
Ramirez Zuniga Family LLC vs
DEBTOR
Docket 24
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rebecca Perez Represented By
Leroy Bishop Austin
Movant(s):
Ramirez Zuniga Family LLC Represented By Martin W. Phillips
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
(261 East Barbour Street, Banning, CA 92220)
Ramirez Zuniga Family LLC vs
DEBTOR
Docket 25
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rebecca Perez Represented By
Leroy Bishop Austin
Movant(s):
Ramirez Zuniga Family LLC Represented By Martin W. Phillips
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
(20762 Hopetown Lane, Huntington Beach, CA 92646)
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 18
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any
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bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marcos Chavez Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
(3037 Cudahy St, Huntington Park, CA 90255)
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 27
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2), and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
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For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marcos Chavez Pro Se
Movant(s):
Wells Fargo Bank, National Represented By Robert P Zahradka
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR(S)
Docket 67
- NONE LISTED -
Debtor(s):
Antonio Bisquera Zate Represented By
Rabin J Pournazarian
Joint Debtor(s):
Melinda Frances Zate Represented By
Rabin J Pournazarian
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 24
- NONE LISTED -
Debtor(s):
Kerry Mason Represented By
Julie J Villalobos
Movant(s):
Wells Fargo Bank, N.A. Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON TRUST, N.A.
vs DEBTOR
Docket 27
- NONE LISTED -
Debtor(s):
Stephan Eskidjian Represented By Arsen Pogosov
Movant(s):
Wilmington Trust, National Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] WILMINGTON TRUST, NATIONAL ASSOC
vs
DEBTOR
Docket 26
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) and/or In re
10:00 AM
Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sunny Kim Pro Se
Movant(s):
WILMINGTON TRUST, Represented By Angie M Marth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR9S)
Docket 106
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 108).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis Ernesto Padilla Jr. Represented By Barry E Borowitz
Joint Debtor(s):
Myra Elaine Padilla Represented By Barry E Borowitz
Movant(s):
Wilmington Savings Fund Society, Represented By
Kelsey X Luu
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO.
vs DEBTOR
Docket 13
Appearances required. The parties should be prepared to address the issues raised in the response filed by third party Patricia Ann Weems who claims to be the true owner of the subject property (dkt. 17).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aaron P. Hill Represented By
James D. Hornbuckle
Movant(s):
Deutsche Bank National Trust Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
DEUTSCHE BANK TRUST COMPANY AMERICAS
vs
DEBTOR (S)
Docket 40
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Victor Hugo Anaya Represented By Erika Luna
Joint Debtor(s):
Nora Leticia Anaya Represented By Erika Luna
Movant(s):
Deutsche Bank Trust Company Represented By Sheereen Middleton Keith Labell
10:00 AM
Trustee(s):
Sean C Ferry
Kathy A Dockery (TR) Pro Se
10:00 AM
SARLA GUPTA
vs DEBTOR
Docket 50
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Rosita Bello Represented By
Matthew D. Resnik
Movant(s):
Sarla Gupta Represented By
Carol G Unruh
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TRINITY FINANCIAL SERVICES, LLC
vs DEBTOR
Docket 48
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Yvonne M Vargas Represented By Julie J Villalobos
Movant(s):
Trinity Financial Services LLC Represented By Richard J Reynolds
Rafael R Garcia-Salgado
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 91
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jose Manuel Carrillo Represented By Matthew D. Resnik
Movant(s):
The Bank of New York Mellon, Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SRP 2012-4, LLC
vs DEBTOR
Docket 69
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
10:00 AM
exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eurenie Fahmy Pro Se
Movant(s):
SRP 2012-4 LLC, its successors and Represented By
Kristin A Zilberstein
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 46
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 48).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David Lee Williams Represented By Vernon R Yancy
Movant(s):
U.S. BANK NATIONAL Represented By April Harriott
Matthew R. Clark III Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 32
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 34).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Garcia Represented By Brad Weil
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC Bank USA, N.A.
vs DEBTOR(S)
Docket 81
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 84).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Santiago Corral Represented By Luis G Torres
Joint Debtor(s):
Annayelli Marquina Represented By Luis G Torres
Movant(s):
HSBC Bank USA, National Represented By Angie M Marth Kelsey X Luu
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] NAVY FEDERAL CREDIT UNION
vs
DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
10:00 AM
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Miguel Morse Pro Se
Movant(s):
Navy Federal Credit Union Represented By Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
TY INVESTMENT, LLC
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State
10:00 AM
laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Belter Solares Pro Se
Movant(s):
TY INVESTMENT LLC Represented By Julian K Bach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CHAMPION MORTGAGE COMPANY
vs DEBTOR
Docket 39
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Judith Ann Plantier-Rivas Represented By Gary S Saunders Michael S Kogan
Movant(s):
Champion Mortgage Company Represented By Can Guner Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 92
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Medwenna Michelen Stephenson Represented By
Ali R Nader
Joint Debtor(s):
Darrell Jerome Stephenson Represented By Ali R Nader
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 40
- NONE LISTED -
Debtor(s):
Brenda Joyce Arlon Represented By
Anthony Obehi Egbase
Movant(s):
Wells Fargo Bank, N.A. Represented By Todd S Garan
10:00 AM
AMERICAN FINANCIAL SERVICES, INC.
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Leon J Barnes Represented By Scott Kosner
Movant(s):
Americredit Financial Services, Inc., Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MISSION FINANCIAL SERVICES CORPORATION
vs DEBTOR
Docket 55
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ricardo Rivas Represented By
Ramiro Flores Munoz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
OXFORD CENTER, LLC
vs DEBTOR
Docket 12
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Suk Ryool Kim Pro Se
Movant(s):
Oxford Center, LLC. Represented By Christian T Kim
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
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Docket 10
Appearances required. The tentative ruling is to deny the motion, and issue an order to show cause ("OSC") why counsel for the debtor should not be sanctioned, because (1) the motion fails to give adequate notice of the relief being sought - in fact, it appears to be an attempt to obtain an order imposing the stay without mentioning that it is really seeking relief from the "in rem" order in favor of Wells Fargo Bank, N.A. (dkt. 15, Ex. A) - and (2) because the debtor has not provided sufficient evidence of "changed circumstances" or "good cause" for relief from that in rem order.
Proposed order: Movant is directed to lodge a proposed order denying the motion via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B). If this Court is not persuaded to depart from the tentative ruling to issue an OSC, this Court will prepare the OSC.
Key documents reviewed (in addition to motion papers): oppositions of Wells Fargo Bank, N.A. ("Wells Fargo") (dkt. 15) and the Northlake Homeowners Association (dkt. 16), and the debtor's reply (dkt. 22).
(1) Lack of sufficient notice. The motion is on Local Form F 4001- 1.IMPOSE.STAY.MOTION which seeks relief under 11 U.S.C. 362(c)(3) or
(4) when a case of the debtor was pending within the previoius year and was dismissed (with certain exceptions). The debtor had no such cases, the the motion admits (see dkt. 10, p.3, para. d.2.). The motion never cites 11 U.S.C. 362(d)(4), provides a copy of the in rem order, or states that the debtor is seeking "relief from such order based upon changed circumstances or for good cause shown." Id.
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Therefore, the motion fails to provide adequate notice of what is being sought. Moreover, the motion was not served until 7/12/18 (dkt. 10, last two pages) without any order shortening time. In addition, the notice of motion (dkt. 10, first two pages) incorrectly states that an application for an order shortening time has been filed and remains pending, and that creditors will be served with a further notice once the court has ruled on that application. For all of these reasons the tentative ruling is to deny the motion for lack of adequate notice.
Order to show cause re sanctions. All of the foregoing can be interpreted as an attempt to mislead Wells Fargo into not realizing that the debtor was seeking relief from the in rem order. By filing the wrong form of motion, and obtaining the local form order on that motion (Local Form F 4001- 1.IMPOSE.STAY.ORDER) the debtor could have obtained an order that would appear, at least, to impose the automatic stay against Wells Fargo without having met the standards required by 11 U.S.C. 362(d)(4). This appears to be a misuse of the bankruptcy system, and a basis for this Court to issue an OSC. At the hearing, counsel for the debtor is directed to address why this Court should not issue an OSC.
In addition to the foregoing relief, the tentative ruling is to deny the motion even if this Court were (hypothetically) persuaded to excuse the lack of adequate notice, and the apparent misuse of the bankruptcy system, and reach the merits. The reason is that the motion fails to meet the standards for relief under 11 U.S.C. 362(d)(4), as explained below.
Evidence of intent to hinder, delay, or defraud. The debtor and his spouse have filed nine bankruptcy cases between them. See dkt. 16, Rosenbaum Decl., para. 7, at PDF p.6 (listing 5 bankruptcy cases by the debtor's wife and two prior cases by the debtor) and see dkt. 22, p.2:2-6 (debtor's reply, conceding sixth case by wife, which is the one in which the in rem order was entered). The debtor has not denied, let alone presented persuasive evidence to rebut, that this string of bankruptcy cases was intended to hinder, delay, or defraud creditors. This Court notes that the statute is in the disjunctive - hinder, delay, or defraud, see 11 U.S.C. 362(d)(4). Moreover, the record before this Court shows that creditors actually were hindered, delayed, and/or defrauded because those bankruptcy filings caused years of
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delay and hindrance in exercising remedies for nonpayment (see dkt. 15 and dkt. 16 Ex.A), and meanwhile the interest and other charges continued to accrue while the property was under water.
Lack of evidence of changed circumstances or other good cause shown. The debtor has not provided evidence to support his alleged current and future income. As the objecting parties point out, real estate commissions tend to be uncertain and variable. That is illustrated by the debtor's lack of substantial commissions during a robust and rising real estate market of the past several years (of which this Court takes judicial notice). It is also illustrated by the lack of evidence of the debtor's alleged "new job" (apparently, according to bankruptcy Schedule I, as a self-employed "entrepreneur") starting in "January of 2018, which is [allegedly] paying
$7,500.00 salary [gross? monthly?]." Dkt. 22, p.2:27. The debtor's lack of support for these alleged sources of income is highlighted by:
his variable and insufficient past income as reflected in his accumulated arrears and on the SOFA Part 2 (dkt. 9 at PDF pp. 28-29), ranging from $101,876 in 2016 to $37,450 in 2017, which is insufficient to cover his expenses of $8,389/mo. or $100,668/yr. ($8,389 x 12 =
$100,668/yr.) (see Schedule J, dkt. 9 at PDF p.26), and
his lack of evidence of current income, or projected future income, such as a detailed statement of gross revenues, expenses, and calculation of net income as required by the instructions in item 8a of Schedule I at dkt. 9, PDF p.24 (the debtor has - either intentionally or inadvertently - evaded that requirement by listing his income as an entrepreneur on line 2 and his real estate commissions on line 8h; and in any event neither his motion papers nor his reply papers provide any detail or evidence to support his alleged current or projected future gross revenues, expenses, and net income).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Kevin S Bonn Represented By
R Grace Rodriguez
Movant(s):
Kevin S Bonn Represented By
R Grace Rodriguez R Grace Rodriguez R Grace Rodriguez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 9
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Antonio Gonzales Represented By Stephen S Smyth William J Smyth
Movant(s):
Antonio Gonzales Represented By Stephen S Smyth William J Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 28
Appearances are not required. The motion is defective. It refers to attached declarations but none are attached. It also fails to list the debtor's prior bankruptcy cases (there are two that were dismissed within the year before this case was filed: Case No. 2:17-bk-21186-NB and 2:17-bk-24025-SK). In addition, the debtor's prosecution of this case appears to have numerous problems. See, e.g., Trustee's Objections to Confirmation (dkt. 31).
Nevertheless, no party in interest has objected to the motion, and the relief that it seeks, and grounds therefor, can be adequately discerned.
Therefore the tentative ruling is to grant the motion and find good faith solely for purposes of this motion (i.e., not for any other purposes, such as the Trustee's objection to confirmation). This tentative ruling is also subject to the following conditions.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
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Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Reina Teresa Lira Represented By Daniel A DeSoto
Movant(s):
Reina Teresa Lira Represented By Daniel A DeSoto
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 6
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anita Arriaga Delgadillo Represented By Jaime A Cuevas
Movant(s):
Anita Arriaga Delgadillo Represented By Jaime A Cuevas Jaime A Cuevas Jaime A Cuevas
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 14
Grant, subject to the following conditions and subject to any opposition at the hearing, and also subject to Debtor's counsel not charging for appearing at this hearing because he would not have needed to appear if it were not for the fact that creditors may have been misled by the notice, which failed to correctly state that oppositions were due 5 days before the hearing pursuant to the undersigned's posted procedures (available at www.cacb.uscourts.gov). Appearances required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for
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reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Villapando Represented By Steven Ibarra
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 14
Appearances required. This Court has reviewed the motion papers (dkt. 13, 14, 16, 19, 20), the opposition papers (dkt. 27) filed by Gap Fund, LLC ("Gap"), and other filed documents.
The tentative ruling is to deny the motion for the following reasons.
Analysis:
Background.
The debtor seeks an order continuing the automatic stay in this case pursuant to 11 U.S.C. 362(c)(3). The motion (dkt. 14, pp. 3-4) only references the real property at 39926 Golfers Drive Palmdale, CA 93551 ("Golfers Drive Property") and 343 West 74th Street Los Angeles, CA 90003 ("74th Street Property") and names two creditors in particular (apparently the holders of deeds of trust against the Golfers Property): (1) US Bank, and (2) Real Time Resolutions. However, debtor’s declaration (dkt. 14, para 11) states that debtor requests continuance of the stay as to all creditors.
At the hearing the debtor is directed to clarify whether relief is sought as to all property of the estate. The tentative ruling is that any attempt to do otherwise would inappropriately discriminate among creditors.
For example, if the debtor seeks to stay acts against the Golfers Drive Property but not stay garnishment of wages, that might create a race to seize those wages. Such an unrestricted race to seize assets could be disruptive to the orderly restructuring of the debtor’s finances that is at the heart of the Bankruptcy Code’s attempt to treat creditors equally and maximize creditors’ recoveries.
Accordingly, the tentative ruling is interpret the ambiguous motion as a request to continue the automatic stay as against all property and creditors.
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The automatic stay will terminate 30 days after the petition date unless this Court enters an order extending it.
On 7/13/15 the debtor filed a voluntary chapter 13 petition (2:15-bk- 21069-NB) (the "Prior Case"). The Prior Case was dismissed on 6/18/18 at the request of the chapter 13 trustee for failure to make plan payments (id., dkt. 113, 131). Less than a year later, on 7/13/18, the debtor filed this chapter 13 case. Therefore, the automatic stay will terminate on 8/12/18 if this court does not extend the stay, pursuant to 11 U.S.C. 362(c)(3):
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
on motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30- day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed. [Emphasis added.]
The parties have not briefed the legal standards applicable to 11
U.S.C. 362(c). First, there is authority that if the automatic stay is not continued beyond 30 days then it terminates in all aspects, i.e., not only as to the debtor individually but as to all parties and the bankruptcy estate. In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11- bk-53730-NB, docket #40 (Memorandum Decision).
Second, there is authority that "good faith" is a factual inquiry, although to the extent the statute defines what is good faith the interpretation of the statute is a legal question. See generally, e.g., In re Ellsworth, 455 B.R. 904, 914, 917 (9th Cir. BAP 2011) (holding that good and bad faith in other contexts are factual inquiries). Cf. U.S. Bank v. Village at Lakeridge, LLC,
U.S. , 138 S.Ct. 960, 966-69 (2018) (analyzing what issues are factual and
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what are legal).
Third, the factual nature of "good faith" does not necessarily mean that live testimony is required. See, e.g., In re Nicholson, 435 B.R. 622, 635-36 (9th Cir. BAP 2010). In fact, the tentative ruling is that, just like hearings on whether to grant relief from the automatic stay, any hearing on whether to continue the automatic stay is intended to be an expedited, summary proceeding, not a full blown trial. See 11 U.S.C. 362(c)(3)(B) (30 day limit to conclude hearing), and compare 11 U.S.C. 362(d)&(e) (30 day limit to conclude hearing) and In re Johnson, 756 F.2d 738, 740 (9th Cir. 1995) (summary nature of proceedings on whether to grant relief from stay); In re Veal, 450 B.R. 897, 914-15 (9th Cir. BAP 2011) (same, requiring only "colorable" basis for standing to seek relief from stay).
Fourth, the "good faith" inquiry is narrowly focused on the filing of the petition. For example, debtors sometimes argue that because they have a genuine desire to retain a roof over their and their family's heads they are acting in good faith, but the question is not the genuineness of that motive. The question is whether the debtor had a sufficient basis to believe that the current bankruptcy case could be properly prosecuted notwithstanding the dismissal of one or more earlier bankruptcy cases. In a reorganization case, such as this one, the tentative ruling is that the test of good faith is analogous to a standard test of whether relief from the automatic stay is appropriate: when the petition was filed, did the debtor have a good faith basis to believe that there would be "a reasonable possibility of a successful reorganization within a reasonable time." United Savings Assn. v. Timbers of Inwood Forest, 484 U.S. 365, 376 (1988) (interpreting 11 U.S.C. 362(d)(2)) (citation and internal quotation marks omitted), and see 11 U.S.C. 362(d)(3)(A) (similar test in single asset real estate cases).
Fifth, a finding of good faith for the preliminary purpose of whether to
continue the automatic stay under 11 U.S.C. 362(c)(3) is not necessarily determinative of good faith for any other purposes. See, e.g., 11 U.S.C. 1129 (a)(3), and In re Abdelgadir, 455 B.R. 896, 900 (9th Cir. BAP 2011).
The tentative ruling is that this case presumptively was not filed in good faith, that presumption is only rebuttable by clear and convincing evidence, and the debtor has not met her burden to do so.
The statute provides, in relevant part:
… a case is presumptively filed not in good faith (but such
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presumption may be rebutted by clear and convincing evidence to the contrary) – as to all creditors, if –
…
a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to –
…
(cc) perform the terms of a plan confirmed by the court; or
…
there has not been [x] a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or [y] any other reason to conclude that the later case will be concluded –
…
(bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed. [11
U.S.C. 362(c)(3)(C) (emphasis added)]
Failure to perform the terms of the confirmed plan in the Prior Case. Debtor’s motion acknowledges that the Prior Case was dismissed because she failed to perform the terms of her confirmed chapter 13 plan (dkt. 14, p. 8). Debtor states that she was unable to make her plan payments because of extensive car repair bills, a broken foot that prevented her from working full time, and damages to the 74th Street Property that resulted in the tenant withholding rental income (id.).
Therefore, the presumption of lack of good faith applies, and it can only be rebutted by clear and convincing evidence.
Insufficient evidence of a substantial change in circumstances, or other reasons to believe that this case will conclude in a confirmed and fully performed plan. Debtor states that there has been a substantial change in her personal or financial affairs since dismissal of the Prior Case (i.e. since 6/18/18) because "[she] is back to work full time, her car transmission is fixed and the rental property is back to code and [she] is receiving the Section 8 voucher again." (dkt. 14, p. 9).
Gap argues (dkt. 27) that the debtor has failed to demonstrate a substantial change in circumstances. On the one hand, this Court is not
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persuaded by Gap's argument that the costs of (i) being out of work on half- pay (implicitly for a substantial time) or (ii) damage to a rental property (that is implicitly extensive) are necessarily "expenses that one should expect to arise from time to time" (dkt. 27, p.5, para.13). On the other hand, this Court is persuaded that vehicle repairs should be expected, and in addition the debtor has not provided any evidence (let alone clear and convincing evidence) to corroborate (1) the alleged vehicle expenses, (2) why damage to her toe prevented her from working at her regular job (e.g., a doctor's evaluation that she could not work, even with a cast or other treatment), (3) for how long she allegedly was unable to work, and why her injury allegedly prevented her from earning alternative income (e.g., sedentary work), (4) the extent of damage to her rental property, (5) how long that damage resulted in a loss of rental income, (6) why that damage could not have been repaired soon enough to prevent or minimize an interruption in rental income, (7) why that damage (and any loss of rental income) was not covered by insurance, (8) whether the vehicle expenses, broken toe, and damage to the rental property were not in fact "expenses that one should expect to arise from time to time" (dkt. 27, p.5, para.13), (9) why events that happened years ago are still relevant, or (10) any other facts and circumstances that would establish her good faith by clear and convincing evidence.
Additionally, even though the debtor states that those financial hardships are now behind her, the debtor has not presented any evidence to show any actual changes in her financial or personal circumstances (e.g., that she is generating higher rental or employment income, etc.). Instead, the debtor’s purported change in circumstances appears (at least implicitly) to be that debtor does not anticipate the same financial hardships that prevented her from performing the terms of her plan in the Prior Case to occur in this case. The tentative ruling is that this is insufficient evidence of a substantial change in circumstances, because debtor has not explained how she is in a better position to deal with similar events that likely will occur during the course of this case without defaulting on any proposed plan.
In sum, there is a presumption of lack of good faith; that presumption can only be rebutted by clear and convincing evidence; and the debtor has not met her burden to do so.
Insufficient Service/Notice. In addition to the foregoing, (a) the docket does not reflect that the debtor served the order shortening time (dkt. 17, the
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OST) as directed in paragraph 3.(b)(3) of the OST, with a deadline of 7/26/18), and (b) to the contrary, the docket includes a misleading notice (dkt. 20) which states that any opposition was due 14 days prior to the hearing (an impossibility, because the notice itself was not served until 14 days prior to the hearing). (The tentative ruling is also to disregard the service via facsimile (dkt. 16, 19) for lack of compliance with Rule 9014(b) (Fed. R. Bankr. P.) (incorporating Rule 4 and Rule 5(b)(2)(E), Fed. R. Civ. P.).)
(6) Conclusion.
The tentative ruling is that there is a presumption that the debtor has not filed this case in good faith for two alternative reasons: first, she failed to perform the terms of a confirmed plan without substantial excuse; and second, she has not presented enough evidence of a change in her personal and financial circumstances to believe in good faith, as of the petition date, that this case has a reasonable possibility of resulting in a confirmed and fully performed plan. The burden is on the debtor to rebut this presumption by clear and convincing evidence and she has not done so.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Joyce Annette Aguebor Represented By
D Justin Harelik
Trustee(s):
Nancy K Curry (TR) Pro Se
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WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 105
Debtor(s):
Partrick I. Ikhifa Represented By
Anthony Obehi Egbase Onyinye N Anyama Edith Walters
W. Sloan Youkstetter
Movant(s):
Wilmington Savings Fund Society, Represented By
Brandye N Foreman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PARAMOUNT RESIDENTIAL MORTGAGE GROUP
vs DEBTOR
Docket 57
Debtor(s):
Viridiana Gutierrez Represented By William G Cort
Movant(s):
Paramount Residential Mortgage Represented By
Jason A Savlov Jason C Kolbe Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
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CITIMORTGAGE, INC.
vs DEBTOR
Docket 274
Continue to 8/14/18 at 10:00 a.m., the day after the current date set for closing of the sale of the Tchoupitoulas property. See Status Report (dkt. 292). Appearances are not required on 8/7/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
Movant(s):
CitiMortgage, Inc. Represented By Todd S Garan
10:00 AM
(2720 Homestead Rd, Suites 210 & 220, Park City UT 84098)
fr. 12/12/17, 02/13/18, 5/22/18
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 143
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
(2720 Homestead Rd, Suite 200, Park City UT 84098)
fr. 12/12/17, 02/13/18, 5/22/18
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 144
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
NP162, LLC
vs DEBTOR
Docket 42
Debtor(s):
Anna Kusnier Represented By Julie J Villalobos
Movant(s):
NP162, LLC, its Successors and Represented By Michelle R Ghidotti Kristin A Zilberstein
Trustee(s):
Kathy A Dockery (TR) Pro Se
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U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 24
Debtor(s):
Rogelio Machuca Represented By Luis G Torres
Joint Debtor(s):
Rosalba Machuca Represented By Luis G Torres
Movant(s):
U.S. Bank National Association, as Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
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US BANK N.A.
vs DEBTOR
Docket 41
Tentative Ruling for 8/7/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This matter has been continued a number of times at the parties' request to allow time to negotiate the terms of a stay-current adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
At the hearing on 5/22/18, this Court was persuaded to continue this hearing to this date at Movant's request to allow time for the parties to negotiate a stay-current adequate protection order. There is no tentative ruling, but the
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parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Deny for the reasons stated in the debtor's response (dkt. 48). At this early stage of the case it is premature to conclude that the debtor cannot propose a plan of reorganization that has a reasonable possibility of being confirmed within a reasonable time. Appearances are not required.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's response (dkt. 48)
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
10:00 AM
Movant(s):
U.S. Bank National Association Represented By Cassandra J Richey
10:00 AM
L BROTHERS INVESTMENT GROUP, INC
vs DEBTOR
Docket 8
Debtor(s):
Karoline Tuimalealiifano Pro Se
Movant(s):
L Brothers Investment Group Inc Represented By
Laurie Howell
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 55
Tentative Ruling for 8/7/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 6/12/18, this Court continued the matter based on the representations of counsel for the debtor regarding the parties' attempts to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Leticia Garcia Represented By Leonard Pena
Joint Debtor(s):
Antonio Garcia Represented By Leonard Pena
Movant(s):
Nationstar Mortgage, LLC. Represented By Michael Daniels Angie M Marth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FEDERAL NATIONAL MORTGAGE ASSOCIATION
vs DEBTOR(S)
Docket 65
Debtor(s):
Carlos Roberto Calderon Represented By Tamar Terzian
Joint Debtor(s):
Rosalva Calderon Represented By James T King Tamar Terzian
Movant(s):
Federal National Mortgage Represented By
Andrew David Goldberg Lisa B Singer
Renee M Parker
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 47
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ramiro Saldana Represented By Jeffrey N Wishman J Scott Bovitz
Trustee(s):
Timothy Yoo (TR) Represented By Todd M Arnold Jeffrey L Sumpter
11:00 AM
Docket 36
Grant in the voluntarily reduced amounts of $22,268.50 in fees and $943.22 in expenses for a total of $23,211.72 in fees and expenses. See dkt. 50.
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ramiro Saldana Represented By Jeffrey N Wishman J Scott Bovitz
Trustee(s):
Timothy Yoo (TR) Represented By Todd M Arnold Jeffrey L Sumpter
11:00 AM
Docket 126
Appearances required. Subject to overbids, and the issues noted below, the tentative ruling is to grant the motion.
Proposed order: If this Court grants the Motion, Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's schedules (dkt. 1); Stipulation Between Trustee and U.S. on Behalf of IRS re: Sale of Real Property (dkt. 81, 83); Notice of Sale of Estate Property (LBR 6004-2) (dkt. 128); Construction Laborers Trust Funds' Response (dkt. 130)
Current Issues:
Whether the Property is Property of the Estate. In order to authorize a sale of real property under section 363, this Court must first determine that the property is property of the estate. Debtor's schedules state that as of the petition date he owned a 100% fee simple interest in the property (dkt. 1, pdf p. 11), but the trustee concedes that title to the property "appears to be vested in Debtor's trust, the 'Grayson Family Trust Dated 2/8/2004'" and that "[d]espite his best efforts, the Trustee has been unable to obtain a copy of the Debtor's trust ...." (dkt. 126, pdf p. 7). Nevertheless, the Trustee relies on California Probate Code section 18200 in support of his position that he has the power to revoke the debtor's trust and exercises that power to bring the property into this estate.
As of the preparation of this tentative ruling, this Court is not aware of any party-in-interest asserting an ownership interest in the property or
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otherwise challenging the Trustee's assertion that it belongs entirely to this estate. In addition, it appears that implicit in the motion is the Trustee's assertion that all steps necessary to revoke any trust that exists have been taken or should be excused, and no party in interest has objected to that assertion.
Therefore, on the record before it, this Court could make a finding that the property is property of the estate that can be sold free and clear under section 363. But any such finding is premised upon a determination that the Trustee gave proper notice to all possible beneficiaries of the trust and/or heirs of the debtor. See In re Popp, 323 B.R. 260 (9th Cir. BAP 2005) (reversing approval of a sale of real property under section 363 where the bankruptcy court made a determination that the estate was authorized to sell the property while litigation over ownership was pending).
This Court notes that the Trustee's proof of service reflects service on "Anastasia Grayson, individually and as potential beneficiary of the Grayson Family Trust dated 2/8/2004" (dkt. 126, PDF p. 75). But the Trustee should be prepared to address whether Ms. Grayson is the only possible beneficiary and/or heir and, if not, whether all possible benefiaries and heirs have been served with the papers.
Good faith finding. The tentative ruling is that any buyer must provide declaration(s) disclosing any connections with the debtor and the trustee, and otherwise addressing the issue of good faith, as set forth in the posted procedures for Judge Bason (available at www.cacb.uscourts.gov).
No 14 day stay. The motion requests that this Court order that there be no 14 day stay under Rule 6004(h) (Fed. R. Bankr. P.). In view of the lack of opposition to the motion, this Court's tentative ruling is to grant that request.
Eviction, if necessary, of any occupants. The tentative ruling is that inherent in granting the motion for a sale free and clear of all interests is the authorization for the Trustee to pursue any remedies for failure to vacate the premises, including enforcement of the stipulation with the debtor's daughter to vacate the premises. See dkt. 126, Ex. 7.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
11:00 AM
Adv#: 2:18-01158 Duff v. Quinn
Docket 1
Appearances required. The court has reviewed defendant/debtor Quinn's unilateral status report (dkt. 7) and the other filed documents and records in this adversary proceeding. Counsel for the plaintiff/creditor Duff is directed to address why no status report was executed by plaintiff.
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the
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parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 8/24/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 5/24/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 10/8/18. Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: 11/27/18. Joint Status Report: 11/13/18.
Continued status conference: 11/27/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Kevin James Quinn Represented By John F Wolcott
Defendant(s):
Kevin James Quinn Pro Se
Plaintiff(s):
James T Duff Pro Se
Trustee(s):
David M Goodrich (TR) Pro Se
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Adv#: 2:18-01044 Avery v. Rivera
fr. 04/24/18, 06/26/18
Docket 1
Debtor(s):
Jaime Rivera Represented By
David H Chung
Defendant(s):
Jaime Rivera Pro Se
Plaintiff(s):
Wesley H. Avery Represented By Richard A Marshack Chad V Haes
D Edward Hays
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:18-01045 Avery v. Rivera aka Jaime Rivera, Jr. et al
fr. 04/24/18, 06/26/18
Docket 1
Debtor(s):
Jaime Rivera Represented By
David H Chung
Defendant(s):
Jaime Rivera aka Jaime Rivera, Jr. Pro Se Jaime Rivera Pro Se
Victorina Rivera Pro Se
Plaintiff(s):
Wesley H. Avery Represented By
D Edward Hays Chad V Haes
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:18-01076 Yoo v. Windorf et al
Cont'd status conference re: Complaint for: (1) Avoidance of voidable transfer; (2) Recovery of avoided transfer;
and (3) Turnover of property fr. 5/22/18
Docket 1
- NONE LISTED -
Debtor(s):
Paula L Grandchamp Represented By Scott Kosner
Defendant(s):
Deborah A Windorf Pro Se
Paula L Grandchamp Pro Se
Plaintiff(s):
Timothy J Yoo Represented By Carmela Pagay
Trustee(s):
Timothy Yoo (TR) Pro Se
11:00 AM
Adv#: 2:17-01365 Naranjo v. Moisa et al
(2) Declaratory Relief
fr. 10/03/17, 11/17/17, 12/5/17, 4/17/18, 5/29/18, 7/10/18
Docket 1
Tentative Ruling for 8/7/18:
Continue to 9/4/18 at 11:00 a.m. to be concurrent with the hearing on the motion for a default judgment. See dkt. 47-52. Appearances are not required on 8/7/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Continue to 8/7/18 at 11:00 a.m. (no written status report required). Plaintiff is encouraged to file and serve a motion for a default judgment (the "Default Judgment Motion") for the same date and time.
Reasons: Plaintiff has obtained Clerk's defaults (dkt. 43, 44) on the amended complaint (dkt. 37) against the defendants Rosa Moisa and Edward Trevino Moisa. The tentative ruling is that any Default Judgment Motion must include the following.
Evidence. The Default Judgment Motion must be supported by a declaration showing evidence to support the assertion that the property description in the prayer for relief (dkt. 37 at PDF pp. 8:21-9:6) is correct (and the existing property descriptions are wrong (see dkt. 37, p.2 at para.3&5 &
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Ex.A&B at PDF pp. 12&15). For example, it appears that an authenticated copy of the recorded grant deed by which the defendant(s) acquired her (or their) interest(s) in the property might show the correct property description.
Service. Pursuant to Rule 55(b)(2) (Fed. R. Civ. P., incorporated by Rule 7055, Fed. R. Bankr. P.), the tentative ruling is that any Default Judgment Motion must be served only on Mr. Edward Trevino Moisa, not on the (deceased) defendant Ms. Rosa Moisa.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Grant the motion for an order allowing service of process via publication (dkt. 27), as supplemented (dkt. 34), for the reasons stated at the hearing on 12/5/17 (see dkt. 33). Continue the status conference in this adversary proceeding to 5/29/18 at 11:00 a.m. (no written status report required).
Appearances are not required on 4/17/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The tentative rulings are as follows.
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No relief against unnamed defendants. At the initial status conference on 10/13/17, and in the tentative ruling for that status conference (reproduced below), this court questioned how quiet title relief could be granted against persons who are not named as defendants. The motion for a default judgment does not address that issue, and yet it seeks to quiet title as against all persons, whether or not they are named as defendants. The tentative ruling is to deny that relief.
No relief against decedent whose estate has not been properly served. In addition, the plaintiff appears to be seeking a default judgment against a decedent, Ms. Rosa Moisa, without having served anyone who could properly accept service for the decedent. In fact, in preparing for this hearing this court noticed that the plaintiff had the complaint served on herself as administrator of Mr. Moisa's esate (see adv. dkt. 5 at PDF p.4). How is that proper?
To make matters worse, it appears that she is not actually the administrator: she declares that she is currently seeking to be appointed as the administrator of the decedent's estate. See adv. dkt. 21, Plaintiff Decl., p.4, para. 14.
How could counsel for the debtor seek a default judgment on this foundation?
No relief against persons with whom there is no actual case or controversy. The plaintiff also seeks relief against Mr. Edward Trevino Moisa (the son of the decedent Ms. Moisa). The plaintiff alleges that there is an actual case or controversy involving him (and Ms. Moisa), but the plaintiff also alleges that after his mother transferred the property to Mr. Moisa he voluntarily transferred the subject property to the plaintiff via grant deed (dkt. 21, Plaintiff Decl., p.2, para. 5-6), and that Mr. Moisa "takes no position" and has not responded to the complaint (id. p.5:3). How is there an actual case or controversy involving Mr. Moisa (or his mother)?
Possible real party in interest? It is unclear from the filed papers, but the party against whom the plaintiff might really be seeking relief is the county of Los Angeles. She alleges that when she attempted to refinance the property "the Title Company for the future Lender noticed the discrepancy in the Grant
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Deeds (regarding Legal Description), that LA County changed the designation back to Rosa Moisa as the current owner." Id., p.4, para. 13 (emphasis added.) But it is not clear what this means - did LA County commit an error in indexing? Did it improperly alter the text of some grant deed? Or did LA County allegedly do something else to "change the designation" in some document or record?
Nor does the plaintiff point to any document that reflects any such confusion. It is not this court's role to scour the record to try to figure out what the plaintiff means.
Conclusion. This court is very empathetic to the plaintiff (the debtor), who alleges that she purchased the property when it had no equity, and made payments to save the property from foreclosure, and yet, although she has obtained this court's approval to refinance the property, she has been unable to do so because of some sort of discrepancy in the real estate records regarding her title to the property. But the papers filed by the debtor's counsel fail to explain the actual issue, and in any event appear to be wholly inadequate to address whatever the issue might be.
In addition, this court is very troubled that the filed papers appear to violate basic legal principles and ethical obligations. It appears that counsel for the debtor has sought a default judgment based on (i) the plaintiff/debtor serving herself, (ii) as the purported administrator of the estate of a decedent/defendant, even though she has not yet been appointed in that role, and (iii) with whom there does not appear to have been any actual case or controversy. This appears to be an attempted fraud on the court, intended to obtain a default judgment in the hope of binding other persons who have not been named as defendants.
Is there any reason why this court should not issue an order to show cause why sanctions should not be imposed? Meanwhile, what can be done to address whatever is the actual issue that is holding up the debtor's refinance of her real property?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Continue to 12/5/17 at 11:00 a.m. to heard concurrently with the motion for a default judgment. Appearances are not required on 11/7/17.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 10/3/17:
Appearances required.
There is no tentative ruling, but the plaintiff should be prepared to address the exact nature of the relief sought, and how this court can grant relief as against persons who are not named as defendants.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Virginia Naranjo Represented By David R Chase
Defendant(s):
Rosa Moisa Pro Se
Edward Trevino Moisa Pro Se
11:00 AM
Plaintiff(s):
Virginia Naranjo Represented By David R Chase
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
fr. 06/26/18
Docket 79
- NONE LISTED -
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
fr. 06/26/18
Docket 83
- NONE LISTED -
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
fr. 06/26/18
Docket 89
- NONE LISTED -
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
Docket 87
- NONE LISTED -
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
fr. 06/26/18
Docket 81
- NONE LISTED -
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
1:00 PM
Docket 873
Grant, based on the withdrawal (dkt. 882) of the opposition. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
AWTR Liquidation Inc Represented By Brian L Davidoff Claire E Shin
C John M Melissinos Jeffrey A Krieger Courtney E Norton Danielle A Pham
1:00 PM
to Assume and Assign Unexpired Non-Residential Real Property Leases
Docket 457
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem
1:00 PM
a complaint for exception of discharge under 11 U.S.C. section 523(a)(2), (4), or (6)
Docket 328
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
1:00 PM
on Behalf of Law Offices of Lionel E. Giron for Debtor In Possession
Docket 97
Grant, subject to reduction of $190.00 in the requested expenses for the reasons stated in the United States Trustee objection (dkt. 102), for an award of: $21,610 in fees and $190.29 in expenses. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Steve O Chong Represented By Lionel E Giron Kevin Tang
Joint Debtor(s):
Edwina Theresa Chong Represented By Lionel E Giron Kevin Tang
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Docket 46
This motion has been mooted by this Court's Order (dkt. 54) approving Stipulation (dkt. 52) and dismissing the debtor with a 180-day bar to refiling. See also Notice of dsimissal (dkt. 55). Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brenda Joyce Arlon Represented By
Anthony Obehi Egbase
1:00 PM
Docket 44
- NONE LISTED -
Debtor(s):
Brenda Joyce Arlon Represented By
Anthony Obehi Egbase
1:00 PM
Docket 13
Debtor(s):
Brenda Joyce Arlon Represented By
Anthony Obehi Egbase
1:00 PM
fr. 3/3/15, 3/31/15, 4/28/15, 5/26/15, 6/9/15, 7/7/15, 07/28/15, 9/1/15, 9/22/15, 11/17/15, 12/15/15,
1/19/16, 2/23/16, 3/22/16, 5/31/16, 7/19/16, 9/27/16,
11/29/16, 1/10/17, 4/25/17, 6/20/17, 10/17/17, 1/30/18,
4/10/18, 5/8/18, 6/7/18, 7/10/18
Docket 9
Tentative Ruling for 8/7/18:
Continue to 9/4/18 at 1:00 p.m., with a brief status report due by 8/21/18. Appearances are not required on 8/7/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 325) and Status Report (dkt. 326). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Continue to 8/7/18 at 1:00 p.m. Appearances are not required on 7/10/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 322) and Status Report (dkt. 324). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Continue to 7/10/18 at 1:00 p.m. Appearances are not required on 6/7/18.
This Court has reviewed the debtor's latest filed documents regarding its cash flow and sale of property (dkt. 316, 317, 319, 320). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Continue to 6/7/18 at 1:00 p.m. Appearances are not required on 5/8/18.
This Court has reviewed the debtor's status report (dkt. 313), notice of pending sale for the Broadway property (dkt. 314), and latest monthly operating report (dkt. 312). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 1:00 p.m. Appearances are not required on 4/10/18.
This court has reviewed the debtor's status report (dkt. 311) and monthly operating reports (dkt. 309, 310), and this court is not aware of other issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's status report (dkt. 304) and the notice (dkt. 307) filed by Bayview Loan Servicing, LLC ("Bayview"). The parties should be prepared to address the issues raised by those papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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This court has reviewed the debtor's post-confirmation status report (dkt. 298) and has no issues to raise sua sponte at this time. The tentative ruling is to continue this status conference to 1/30/18 at 1:00 p.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 10/17/17 at 1:00 p.m. in view of the debtors' status report (dkt. 292). Appearances are not required on 6/20/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/25/17:
Continue to 6/20/17 at 2:00 p.m., to provide the debtors with time to seek entry of a final decree in this case, or such other remedies as may be necessary or appropriate, in view of the confirmed Joint Chapter 11 Plan (dkt. 270) and the unopposed motions to approve the compromise with Butler Capital (dkt. 277-80). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
[PRE-CONFIRMATION TENTATIVE RULINGS OMITTED]
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush
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David R Haberbush
1:00 PM
Docket 7
Tentative Ruling for 8/7/18:
Continue as set forth below. Appearances are not required on 8/7/18.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 9/4/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. The debtor's proofs of service continue to be defective.
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Elizabeth Cruz declares that she has served the "PROOF OF SERVICE" itself, not the underlying orders. See dkt. 20 at PDF p.2 and dkt. 31 at PDF p.2.
At the hearing counsel is directed to explain why the proofs of service are defective, and what steps will be taken to correct this issue so that it no longer occurs. The deadline is 6/19/18 to file further amended proofs of service of both orders (the order setting principal status conference etc. at dkt. 6, and the bar date order at dkt. 23).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). See above.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/7/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 13). Counsel must address:
Income as of petition date or current? The debtor has filed an amended bankruptcy Schedule I (dkt. 30). Is that actually intended to be a decaration of postpetition income, or a correction of the debtor's income as of
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the petition date?
Amended budget motion? Should an amended budget motion needs to be filed and served, or is such notice unnecessary and should the budget be deemed amended, in view of what appears to be an increase of approximately $168 in the debtor's monthly income (compare dkt. 13 at PDF p.8, debtor's personal income of $2,800, with dkt. 30, line 7, debtor's personal income of $2,968)?
Cash collateral motion (dkt. 12). Grant on a final basis, on the same terms as the interim order (dkt.24).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). Note: Timely served? Per the proof of service (dkt. 26, the "POS") the debtor served the POS itself on creditors. Presumably the debtor means that she served the order on creditors (not the POS), but the debtor is directed to file an amended POS saying so, no later than 5/3/18.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
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Current issues.
Failure to serve order. This Court's order setting this status conference (dkt. 6) directed the debtor to serve a copy of that order on all parties in interest no later than 14 days prior to this status conference. No proof of service appears on the docket. The tentative ruling is to set a deadline of 4/11/18 for the debtor to effect such service, with a caution to counsel that in future such failure may result in sanctions.
Budget motion (dkt. 13). Grant on an interim basis, with a final hearing on the same date at the continued status conference set forth below.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
1:00 PM
Docket 1
Tentative Ruling for 8/7/18:
Continue to the date and time stated below in view of the debtor's status report (dkt. 31). Appearances are not required on 8/7/18.
Current issues. This Court has reviewed debtor's status report (dkt. 31), and other relevant pleadings and has no issues to raise sua sponte
Deadlines/dates. This case was filed on 4/27/18.
Bar date: 8/3/18 (timely served, dkt. 19, 25)
Plan/Disclosure Statement*: file by 8/27/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 9/18/18 at 1:00 p.m., brief status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/28/18:
Appearances required by counsel for the debtor and by the debtor herself.
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Current issues. This Court has no issues to raise sua sponte. The debtor should be prepared to discuss how she plans to reduce her monthly expenses to generate sufficient net monthly income to fund a plan.
Deadlines/dates. This case was filed on 4/27/18.
Bar date: 8/3/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/27/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/7/18 at 1:00 p.m., brief status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Judith L. Tallarico Represented By Lewis R Landau
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7/11/17, 8/15/17, 9/12/17, 10/3/17 , 12/5/17,
2/13/18, 5/1/18
Docket 5
Tentative Ruling for 8/7/18:
Continue to 10/9/18 at 1:00 p.m. in view of the debtor's motion for order closing case (dkt. 111), subject to being vacated if the case is closed. No status report required. Appearances are not required on 8/7/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Continue to 8/7/18 at 1:00 p.m. in view of the debtor's post-confirmation status report (dkt. 109). Brief status report due 7/24/18. Appearances are not required on 5/1/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 2/13/18:
Continue to 5/1/18 at 1:00 p.m. in view of the debtor's post-confirmation status report (dkt. 107). Brief status report due 4/17/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
n/a
Deadlines/dates. This case was filed on 11/17/16.
Bar date: 3/15/17 (timely served, dkt. 24).
Amended Plan/Disclosure Statement (dkt. 85, 86)*: Approve the disclosure statement, and confirm the plan under 11 U.S.C. 1129(b) because there is an accepting impaired class (Class 4A, see ballot summary, dkt. 100) and the plan is fair and equitable and does not discriminate unfairly within the meaning of that statute.
Post-Confirmation status conference: 2/13/18 at 1:00 p.m., brief status conference due 1/30/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eleganzarella, Inc Represented By
Anthony Obehi Egbase Crystle J Lindsey Kevin Tang
Adaure C Egu Edith Walters Clarissa D Cu
Amelia Puertas-Samara
W. Sloan Youkstetter
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fr. 7/11/17, 9/12/17, 11/7/17, 12/12/17, 1/23/18, 02/13/18, 3/20/18, 4/17/18, 5/1/18
Docket 1
Tentative Ruling for 8/7/18:
Continue to 11/6/18 at 1:00 p.m. in view of the debtor's post-confirmation status report (dkt. 95). Brief post-confirmation status report due 10/23/18. Appearances are not required on 8/7/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that debtor lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18.
At the continued hearing on 2/13/18, the debtor stated that he reached a settlement with Wells Fargo regarding plan treatment and would be filing a motion to allow late-filed ballot. On 3/12/18, the debtor filed that motion (dkt. 78), with a hearing scheduled for 4/17/18. Debtor's ability to confirm the
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Amended Plan apparently depends upon whether this court accepts Wells Fargo's late-filed ballot.
For the reasons stated below, the tentative ruling is to approve the disclosure statement on a final basis and confirm the debtor's plan.
Motion to Accept Late-Filed Ballot (dkt. 78). The tentative ruling is to grant the motion and accept Wells Fargo's late-filed ballot, in view of the debtor's timely filing of a proof of service reflecting service of the motion on American Express (dkt. 82) in accordance with this Court's 4/17/18 tentative ruling (below). With that ballot counted, the proposed Plan has been accepted by the requisite majorities for consensual confirmation (see Ballot Summary, dkt. 81).
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: Approve the disclosure statement on a final basis, and confirm the plan under 1129(a).
Post-Confirmation status conference: 8/7/18 at 1:00 p.m. Brief
status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Continue all matters set for today to the same date and time as the continued status conference, as set forth below. Appearances are not required on 4/17/18.
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that debtor lacked the votes for confirmation of his proposed plan,
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and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18.
At the continued hearing on 2/13/18, the debtor stated that he reached a settlement with Wells Fargo regarding plan treatment and would be filing a motion to allow late-filed ballot. On 3/12/18, the debtor filed that motion (dkt. 78), with a hearing scheduled for this date. Debtor's ability to confirm the Amended Plan apparently depends upon whether this court accepts Wells Fargo's late-filed ballot.
For the reasons stated below, the tentative ruling is to continue the hearing on approval of debtor's disclosure statement and plan to the above- stated time and place, concurrent with a continued hearing on debtor's motion to accept late-filed ballot.
Motion to Accept Late-Filed Ballot (dkt. 78)
Service. The Motion was not properly served on American Express at the address listed in its proofs of claim (claim nos. 4-1 and 6-1) (nor is it served in an alternative manner that might satisfy Rule 7004 because it was not served to the attention of an officer or agent pursuant to Rule 7004(b)(3) (FRBP)). Since American Express cast the only ballots against debtor's plan, it is particularly important that it be given proper service.
The tentative ruling is to continue the hearing to the same date and time as the continued status conference (see below) and direct the debtor to re-serve the Motion on American Express. This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the debtor serving all papers on the day after the current hearing date and filing a proof of service. Alternatively, debtor may self-calendar a continued hearing on regular notice.
Exit strategy. At the continued hearing, if this Court does not approve the debtor's motion to accept late-filed ballot, the debtor should be prepared to address what his exit strategy from bankruptcy is and whether this case be dismissed.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Continue to 4/17/18 at 1:00 p.m. to be heard concurrently with the debtor's motion to allow late-filed ballot (dkt. 78). Appearances are not required on 3/20/18.
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that he lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18.
At the continued hearing on 2/13/18, the debtor stated that he reached a settlement with Wells Fargo regarding plan treatment and would be filing a motion to allow late-filed ballot. On 3/12/18, the debtor filed that motion (dkt. 78), with a hearing scheduled for 4/17/18.
Exit strategy. At the continued hearing on 4/17/18, if this Court does not approve the debtor's motion to accept late-filed ballot, the debtor should be prepared to address what his exit strategy from bankruptcy is and whether this case be dismissed.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 4/17/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Background. At the hearing on 1/23/18 the debtor's counsel conceded that he lacked the votes for confirmation of his proposed plan, and suggested various ways in which the debtor might proceed. This court set a deadline of 1/30/18 for filing an amended plan or an alternative pleading, which was later extended (dkt. 71) to 2/7/18. That deadline has passed and, as of the preparation of this tentative ruling, no such papers have been filed.
Exit strategy. What is the debtor's strategy to exit from bankruptcy? Should this case be dismissed?
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: TBD.
Continued status conference: 3/20/18 at 1:00 p.m. (if this case is not dismissed). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue this status conference and the combined hearing on final approval of the disclosure statement (dkt. 60) and confirmation of the plan (dkt. 59) to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtor's failure to file the ballot summary with respect to the plan, which was due on 1/16/18 (see Order, dkt. 61) and (b) the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the federal government.
At the continued hearing the debtor should be prepared to testify, or make an offer of proof, as to feasibility.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 59) and disclosure statement (dkt. 58)
Income calculation. Exhibit C, Attachment 1, line 7, for income from "operations of business" requires the debtor to "attach detailed statement." No such statement appears to be provided.
Disputed claims and other prior issues appear to be adequately addressed. The revised Exhibit F (dkt. 58) lists the 16th Street Group twice: once for the undisputed portion and once for the disputed portion - if the
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dollar amount of the disputed portion of the claim is sufficient then this appears to fully address this court's concerns expressed in the tentative ruling for 11/7/17. All of this court's other concerns appear to have been fully addressed as well.
Feasibility. This court anticipates that the debtor may be required to testify, or make an offer of proof, as to feasibility at the combined hearing (set forth below) on final approval of the disclosure statement and confirmation of the plan.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement (dkt. 59, 58)*: 12/15/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 2/27/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues - plan (dkt. 54) and disclosure statement (dkt. 53)
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Disputed claims. The plan contemplates non-payment to some
disputed claims. Unless and until those claims are disallowed (or allowed), the debtor must establish a disputed claims reserve and pay into that reserve in order to confirm any plan.
General unsecured creditors. The plan includes a confusing mix of different listings of general unsecured creditors. Exhibit F starts with the total from the debtor's bankruptcy schedules and then reduces it by a dollar amount that appears to be random (there are no calculations to show how the debtor arrived at that reduction). Attached to Exhibit F is a copy of the debtor's bankruptcy schedules, but those are not manually marked up to show how the debtor arrived at the dollar amounts in Exhibit F.
Exhibit I lists not only general unsecured claims but also priority and secured claims, so it is not helpful to figure out how the debtor arrived at the dollar amount of reduction in Exhibit F.
Exhibit H item "(6)" lists anticipated/pending objections to claims, and provides what appear to be estimated dollar amounts, but there is no basis for such estimates and they are not tied to the reduction in total claims listed in Exhibit F.
It appears that the simpler solution would be (i) to use the "electronic option" in Exhibit F (starting at line 5) for general unsecured claims, instead of attaching the bankruptcy schedules, (ii) cut all unsecured claims from Exhibit I as redundant, and (iii) use a disputed claims reserve and/or obtain final orders disallowing or allowing claims and/or follow the proper procedures for claims estimation, if permissible (see 11 U.S.C. 502(c) and Rule 3018(a), Fed. R. Bankr. P.).
Tax claims. One tax claim has been withdrawn (dkt. 52). Is the tax claim listed in Exhibit A for "LACTTC" a different claim?
Pagination. The debtor's plan divides one-page exhibits onto two pages, which is somewhat confusing. The debtor may need to adjust the page margins to enable them to print on a single page.
Income calculation. Exhibit C, Attachment 1, lines 1 and 7, do not provide adequate disclosure of the debtor's income calculation. Line 1 is for "wages, salary, and commissions" but as an independent contractor the more appropriate line would appear to be line 7 for "operations of business," which requires the debtor to "attach detailed statement." In any event, the debtor cannot simply list net income without any disclosure as to the gross revenues, specific expenses, and calculation of that net income.
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The debtor's failure to disclose sufficient information about revenues
and expenses has been a recurring theme - see the tentative ruling for 7/11/17 (reproduced below), item "(1)(a)" under the "Third" issue. Given this history, this court will require the debtor to file and serve on the U.S. Trustee, no later than the deadline set forth below for filing an amended plan and disclosure statement, a detailed declaration providing documentation as to the basis for each aspect of the income and expense projections (the debtor may incorporate Monthly Operating Reports by reference, but cannot rely only on those MORs - the debtor must provide additional support for his projections).
Double-counting of expenses. Exhibit C, Attachment 1, line 17, includes an adequate protection payment of $325.50/mo. (with a reference to "RFS Order Dkt No. 45"), but it appears that these adequate protection payments will be replaced by the payments in Class 1A of $383.28/mo. It appears that once the added $325.50/mo. is eliminated then the cash flow might be more feasible.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file "blacklined" versions by 11/21/17 (the spreadsheets probably will need to be manually blacklined) (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/12/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/12/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues. This court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 8/18/17 (timely served, dkt. 27, 30)
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Appearances required by counsel for the debtor and by the debtor himself.
Current issues.
Budget motion (dkt. 21). This motion is not on for hearing, but in connection with this Status Conference the debtor should be prepared to address the following concerns.
First, the debtor lists $1,350/mo. in income derived from unemployment benefits, in addition to his $6,150/mo. in business income derived from his self-employment as an independent marketing consultant, a job at which he claims to have been employed for the past year. Dkt. 21, p.
8. How can the debtor obtain unemployment benefits when he is employed? How will the budget change when those benefits cease?
Second, the debtor lists net business income but has failed to provide a breakdown of gross receipts, ordinary and necessary business expenses, and calculation of the resulting monthly net income, as required by the instructions on bankruptcy Schedule "I" line 8a. See dkt. 21 at p. 8.
Third, the debtor asserts a 50% interest in a real estate business in Miami, Buena Vista Terminal, LLC. See dkt. 1, pp. 19, 51. What is the nature of that business? Does the debtor derive any income from that business?
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Finally, the debtor reports that he has just $43.43 in monthly net
income to contribute to a chapter 11 plan. But the debtor has two cars and a motorcyle and over $700/mo. in automobile payments (plus "transportation" costs). Is that reasonable? See In re Concoff (case no. 2:13-bk-37328-NB, dkt. 246).
Application to employ counsel (dkt. 24). Does the U.S. Trustee have any concerns about the proposed interim payment procedures and fee sharing arrangement between Ms. Ghanooni and Ms. Esmaili?
According to the retainer letter (dkt. 24, Ex. 3, para. 4) some of the retainer was to be paid by the debtor's mother, as a gift. But the application and the Rule 2014 disclosures by proposed counsel and by the debtor assert that there is no connection with any insider, and that all funds have come solely from the debtor. Which version of the facts is true? If any portion of the retainer has been paid by a third party, that raises special concerns (e.g., was the third party fully informed, in writing, that counsel represents the DIP not the third party, and might actually have to sue the third party if there were any potentially avoidable transfers? are there any such transfers or other potential conflicts?). See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D.
Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 6/7/17.
Bar date: 9/22/17 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 10/13/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/15/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference, dkt. 8).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
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Docket 19
Debtor(s):
R44 LENDING GROUP, LLC a Represented By
Jeffrey S Shinbrot
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Docket 5
Tentative Ruling for 8/7/18:
Continue to 10/9/18 at 1:00 p.m., per the debtor's request (Status Report, dkt. 51). Appearances are not required on 8/7/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Continue to 8/7/18 at 1:00 p.m. Appearances are not required on 6/26/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This court has no issues to raise sua sponte.
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Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/21/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/26/18 at 1:00 p.m., to be concurrent with other hearings in this case. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
R44 LENDING GROUP, LLC a Represented By
Jeffrey S Shinbrot
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fr. 6/7/18
Docket 41
Continue to 9/18/18 at 2:00 p.m., and vacate the trial that is scheduled to commence on 8/15/18 at 9:00 a.m., in view of the automatic stay arising from the filing of the bankruptcy petition of Mr. William G. Hill (Case No. 1:18-bk- 11914-VK). Appearances are not required on 8/7/18.
Analysis: First, although this Court has located authority that proceedings under 11 U.S.C. 110 are within the police and regulatory power exception to the automatic stay, that conclusion may be subject to dispute, and Mr. Hill (and the Office of the United States Trustee) have not had the opportunity to brief that issue. See In re Hernandez, 66 Collier Bankr.Cas.2d 1022 at n.9 & accompanying text (Bankr. D. Colo. 2011). See also In re Dingley, 852 F.3d 1143 (9th Cir. 2017) (civil contempt proceedings exempted from automatic stay when intended to effectuate court's public policy interest in deterring litigation misconduct).
Second, regardless whether the automatic stay applies, the tentative ruling is that continuing this matter is in keeping with the spirit of the "breathing spell" that bankruptcy is supposed to afford. This Court recognizes that the debtor may be very much in need of whatever funds could be owed to him by Mr. Hill, but any delay from the automatic stay is unlikely to last long.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Johnnie L. Fields Represented By Leslie Richards
Trustee(s):
Kathy A Dockery (TR) Pro Se
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fr. 5/1/18, 5/22/18
Docket 122
Tentative Ruling for 8/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 8/7/18).
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Inc., Hancore Brokerage Services Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting; and (2) Approving Form of Notice to Be Provided to Creditors and Parties- in-Interest in Connection with the Settlement
fr. 5/1/18, 5/22/18
Docket 149
Tentative Ruling for 8/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 8/7/18).
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Fargo Trucking Logistic Co LLC, Express FTC, Inc., Hancore Brokerage Services Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019
fr. 02/13/18, 03/06/18, 5/1/18, 5/22/18
Docket 36
Tentative Ruling for 8/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 8/7/18).
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference (calendar no. 4, at 2:00 p.m. on 3/6/18).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference (calendar no. 8, at 2:00 p.m. on 2/13/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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to Comply with Federal Rule of Bankruptcy Procedure 2019 fr. 5/1/18, 5/22/18
Docket 125
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Docket 1
Tentative Ruling for 8/7/18:
Continue as stated below. No appearances required on 8/7/18.
Current issues. This Court has reviewed the parties' joint status report (dkt. 262) and other relevant pleadings in this case.
Bid Procedures Motion (dkt. 149). The tentative ruling is to defer ruling on this until after resolution of the discovery dispute and continue the hearing to a date and time to be set at the continued status conference set forth below.
Motion to Approve Compromise (dkt. 36). The tentative ruling is to defer ruling on this until after resolution of the discovery dispute and continue the hearing to a date and time to be set at the continued status conference set forth below.
Motion to Determine Extent & Priority of Truck Drivers' Liens (dkt. 122). The tentative ruling is to defer ruling on this until after resolution of the motion to disqualify and continue the hearing to a date and time to be set at the continued status conference set forth below.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 9/4/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 5/29/18:
Appearances required.
Current issues.
Debtor’s Motion to Extend Time to Assume or Reject Lease (dkt. 139). Debtor seeks an extension of time to assume or reject its lease of commercial real property located at 2727 E. Del Amo Blvd., Rancho Dominguez, CA 90221 (the "Property") with Joe Murez Exempt Trust ("JMET" or "Landlord") through June 4, 2018. But in connection with Landlord's currently motion (dkt. 184, see discussion below), the debtor concedes that there are incurable defaults that prevent it from assuming the lease and states that it intends to vacate and surrender the Property by May 31, 2018 (dkt. 197, PDF p. 7, lines 17-19 & Wallace Declaration, paragraph 14). Additionally, on May 7, 2018, debtor served its subtenants with 30-day notices to terminate rental agreement with an expiration date of June 6, 2018 (id., Ex. A).
In Landlord's motion (dkt. 184, see discussion below), it seeks possession of the Property effective as of June 5, 2018 and appears to have consented to an extension through that time (see dkt. 184, PDF p. 4, lines 26- 27).
The tentative ruling is to grant the debtor's motion and extend the deadline to assume or reject the lease to May 31, 2018. The effects of that date on the subtenants and the Landlord are addressed below.
Landlord's Motion for Administrative Claim and Possession of Property (dkt. 184).
Base rent, late fees, interest, CAM, taxes, attorneys' fees and costs. Pursuant to 11 U.S.C. 365(d)(3), Landlord is entitled to an allowed administrative expense for the full amount of rent accrued during the period following the order for relief through the lease rejection, regardless of the
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actual value conferred by the lease upon the estate. See Pacific-Atlantic Trading Company, 27 F.3d 401 (9th Cir. 1994); In re Cukierman, 265 F.3d 846 (9th Cir. 2001). Section 365(d)(3) requires immediate payment of lease obligations so that the landlord is not left providing uncompensated services. In re Cukierman, 265 F.3d at 851-52.
In this case, Paragraph 4.1 of the Lease provides: "All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be Rent." Pursuant to paragraphs 1.5, 4.3, 10.2, 13.4, 13.5, and 31, Landlord is entitled to an allowed administrative expense for payment of base rent, late fees, interest, CAM, taxes, and attorneys' fees and costs. On the record before this Court, Landlord holds an estimated administrative expense in the amount of $79,965.01 ($48,626 (May rent) + $4,862.20 (late fee) + $11,661.31 (real property taxes) + $14,815.5 (attorneys fees) = $79,965.01). Landlord may supplement the record to establish a valid basis for any additional amounts it may be entitled to under the Lease (e.g., prorated June rent if the debtor has not turned over the premises as of 5/31/18).
No superpriority. Section 365(d)(3) does not authorize a superpriority over other administrative expenses. In re LPM Corp., 300 F.3d 1134 (9th Cir. 2002). It is possible that the estate will be administratively insolvent (although the estate's assets and its administrative claims are largely moving targets until the conclusion of any bankruptcy case) so if Landlord had slept on its rights and were seeking prior months' rent it would not be entitled to payment at this time; but that is not the situation.
Landlords are entitled to current payments. Other administrative claimants are not. There is no evidence that this Landlord has slept on its rights.
Reconciling the lack of priority with the entitlement to current payments, the tentative ruling is that Landlord is entitled to immediate payment of a pro rata share of funds that are available to pay estimated accrued administrative expenses to date. This is essentially the alternative relief requested by Landlord (see dkt. 200, p.4:4-8).
Because the interim fee applications (discussed below) seek approximately $305,000 in fees and expenses, and because Landlord's claim is approximately $79,965.01, it appears that the rough total of accrued administrative expenses is approximately $385,000, of which Landlord holds roughly $80,000, or approximately 20% ($80,000/$385,000 = 20.8%).
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Therefore, the tentative ruling is that Landlord is entitled to immediate payment of approximately 20% of the $47,000 in unrestricted funds currently in debtor's possession (dkt. 197, PDF p. 13, paragraph 13), or approximately
$9,400.
Landlord has not established that the funds are held in trust for it. This Court is not persuaded that the $47,000 in funds debtor has on hand is being held in trust for Landlord. Landlord has not carried its burden of establishing that, under California law, an express trust exists that excepts these funds from estate property. See Golden Mortg. Fund # 14 v. Kennedy, 171 B.R. 79, 84 (9th Cir. BAP 1994) ("A creditor has the burden to prove that the funds in the debtor's possession should be held in trust for that creditor's benefit").
Surrender and Writ of Possession. Landlord has discretion whether to extend the time for the debtor to assume or reject the Lease beyond the statutory maximum, or permit occupancy after rejection, absent nonbankruptcy law that would permit occupants to continue in possession. As set forth above, the tentative ruling is that the lease will be deemed rejected on 5/31/18.
Because neither the subtenants nor any other party in interest has articulated a sufficient basis for the subtenants to continue to occupy the Property following rejection of the Lease, the tentative ruling is to grant Landlord's request for a writ of possession directing any subtenants to surrender and vacate the property effective 6/6/18. Landlord is instructed to review LBR 7064-1 and include the necessary language set forth in 7064-1(e) into the proposed order.
Relief from stay. The tentative ruling is to grant Landlord relief from the automatic stay under 362(d)(1).
Waiver of 14-day stay. The tentative ruling is to waive the
14-day stay.
Interim Fee Apps of Levene Neale Bender Yoo & Brill (dkt. 177); CohenReznick LLP (dkt. 178); and Haberbush & Associates LLP (dkt. 179), and related documents (dkt. 200, 214). The tentative ruling is to approve the applications on an interim basis, subject to final review and approval at the conclusion of the case, but deny the requests for immediate payment of fees and expenses given the debtor’s limited funds on hand, except that Haberbush & Associates may draw down on its pre-petition retainer, subject
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to the possibility of disgorgement in future.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/7/18 at 2:00 p.m., to be heard concurrently with the other matters set for hearing in this case. Brief status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
This court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 5/22/18:
Appearances required.
Current issues.
April MOR (dkt.192). On PDF p. 3, the debtor identifies a payment made to "Transport" on 4/26/18 in the amount of $55,515.00 for "dispatch and brokerage svc." What is this payment for? Is it an "ordinary course" transaction?
Motion to Disqualify Truck Driver Counsel (dkt. 125). This Court issued an order (dkt. 169, amended dkt. 175) continuing this motion and set
(i) a 5/15/18 deadline for the Slattery Law Firm and Hirsch Law Firm to file supplemental papers addressing who properly represents the Truck Drivers; and (ii) a 5/21/18 at noon deadline to file any responses.
This Court has reviewed the relevant papers. See dkt. 125, 126 & 127
2:00 PM
(motion papers), dkt. 143 (Hirsch opposition), dkt. 145 (Slattery opposition), dkt. 156, 157 (debtor's reply), dkt. 161 (Slattery decl.), dkt. 167 (Slattery Rule 2019 statements), dkt. 189 (debtor's authorities re attorney-client privilege as applied to retainer agreements), dkt. 199 (Hirsch supp. opposition), dkt. 201 (Slattery decl.), dkt. 202 (Hirsch supp. reply), dkt. 203 (Hirsch evid. obj. to Slattery decl.), dkt. 204 (Rivera|Shakleford opp. re S.H. Chung, R.M. Rubio,
H.D. Alvarez & G. Perez Silva).
There is no tentative ruling, but the parties should be prepared to address the arguments set forth in the filed papers.
(c) Objection to Claim Nos. 11, 37, 38, 40, 44, 45, 50 (dkt. 108, 109,
111, 113, 115, 117, 119). The proofs of claim were filed by the Hirsch Law Firm and the claim objections/notices were served on the Hirsch Law Firm and Slattery Law Firm. However, based on the debtor's pending motion to disqualify both firms, the tentative ruling is to continue the hearings on these claim objections to 6/19/18 at 2:00 p.m., pending resolution of the motion to disqualify. At the continued hearings, the parties should be prepared to address whether it would be appropriate for this court to set continued oppositions deadlines.
Note: Counsel did not comply with Judge Bason's posted procedures (at www.cacb.uscourts.gov) requiring a cost/benefit analysis for any claim objection (although this court's own cost/benefit analysis appears to favor seeking to reclassify these claim). In future, counsel should comply with those posted procedures.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/29/18 at 2:00 p.m., to be heard concurrently with the other matters set for hearing in this case. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
2:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/1/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Motion to Approve Compromise (dkt. 36). The parties should be prepared to address the status of any settlement negotiations with respect to the pending motion to approve compromise.
Status Report. At the last status conference on 2/13/18, this court directed the debtor to file a brief status report by 2/27/18. As of the preparation of this tentative ruling, the debtor has not complied. The debtor should be prepared to address why it failed to comply with this court's order.
Employment application: Creditors' Committee Counsel (dkt. 47, 65). The objection by certain truck drivers (dkt. 63) has been withdrawn (dkt. 89). The debtor's limited objection (dkt. 55) and the reply papers (dkt. 85, 86) raise issues that are best addressed in connection with any application for compensation, at which time this Court can evaluate whether the hourly billing rates are commensurate with the nature of the work performed, the time spent on each task, and the other factors under 11 U.S.C. 330. Therefore the tentative ruling is to overrule the objection and authorize the employment.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status
2:00 PM
conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues.
The parties should be prepared to address (a) whether the Court should order mandatory mediation of the proposed settlement, proposed assignment of the lease, and related issues; (b) whether concurrently this Court should set deadlines such as a discovery cutoff or, conversely, whether this Court should temporarily issue a stay of some litigation; and (c) whether the parties would prefer that this Court provide some tentative rulings or preliminary thoughts on various issues, or if instead it would foster possible settlement or serve other beneficial goals for this Court not to do those things at this stage of the case.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
2:00 PM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
n/a
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 2/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: This court will discuss setting a deadline for the filing of a draft plan/disclosure statement at the status conference.
Continued status conference: 2/13/18 at 1:00 p.m., brief status report due 1/30/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Allocate Proceeds Resulting from Approval, if Any, of the Motion for Order Approving Settlement Between Debtor and CKT Logistics, Inc., Fargo International, LLC, Fargo Transport, LLC, Fargo Trucking Logistic Co., LLC, Express FTC, Inc., Hancore Brokerage Services, Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019 Related to the Secured Creditors Liens
fr. 7/10/18,8/7/18
Docket 122
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
Docket 30
Grant application for hearing on shortened time (see evidence of service, dkt. 31, 33). There is no tentative ruling on the motion to vacate dismissal of this chapter 13 case with a 180-day bar, so as to permit the debtor to pursue chapter 11 relief either in this case or by filing a new case. The parties should be prepared to address any opposition at the hearing. See Order Shortening Time (dkt. 28). Appearances required.
Key documents reviewed (in addition to motion papers): Application for order shortening time (dkt. 26) and evidence of service (dkt. 31, 33).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:00 AM
Docket 27
Appearances required.
Debtor(s):
Kevin S Bonn Represented By
R Grace Rodriguez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, N.A. vs
DEBTOR(S)
Docket 49
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
10:00 AM
exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gerardo Orozco Represented By Rebecca Tomilowitz
Joint Debtor(s):
Maria Orozco Represented By Rebecca Tomilowitz
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, N.A.
vs DEBTOR
Docket 180
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
10:00 AM
exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
James B Williams Pro Se
Movant(s):
JPMorgan Chase Bank, National Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 42
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Alfredo Herrera Holguin Represented By Jeffrey B Smith
Joint Debtor(s):
Diana Herrera Represented By Jeffrey B Smith
Movant(s):
PennyMac Loan Services, LLC Represented By
William F McDonald III Theron S Covey
Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 53
- NONE LISTED -
Debtor(s):
Mildred Dionisio Represented By Daniel King
Movant(s):
Wells Fargo Bank, N.A. Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FREEDOM MORTGAGE CORP.
vs DEBTOR
Docket 29
- NONE LISTED -
Debtor(s):
Mayra Alejandra Chaidez Represented By Gregory M Shanfeld
Movant(s):
FREEDOM MORTGAGE Represented By Jason C Kolbe Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, N.A. vs
DEBTOR
Docket 28
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 31).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Araceli A Castro Represented By Thomas B Ure
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ROUNDPOINT MORTGAGE SERVICING CORP
vs DEBTOR
Docket 32
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Max Roman Betancourt Represented By
James D. Hornbuckle
Movant(s):
RoundPoint Mortgage Servicing Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK N.A. vs
DEBTOR
Docket 21
- NONE LISTED -
Debtor(s):
Michele Francine Sawers Represented By
Rabin J Pournazarian
Movant(s):
U.S. Bank, N.A., successor trustee to Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE LLC
vs DEBTOR
Docket 31
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Quiana Marcella Dunbar Represented By Kahlil J McAlpin
Movant(s):
Citibank, N.A., as Trustee for Represented By Kelsey X Luu Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 25
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
David Watson Gayman Represented By Matthew D. Resnik
Movant(s):
WELLS FARGO BANK, N.A., Represented By Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON TRUST, NATIONAL ASSOC
vs DEBTOR
Docket 22
- NONE LISTED -
Debtor(s):
Alida Marie Henschel Represented By Onyinye N Anyama
Movant(s):
Wilmington Trust, National Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 20
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
10:00 AM
exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gustavo A Rojas Represented By Scott Kosner
Movant(s):
Wilmington Savings Fund Society, Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 18
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 USC 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue,
10:00 AM
then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan F Hernandez Pro Se
Movant(s):
Wells Fargo Bank, National Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LAUREL ROSA, LLC
vs DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Grant the requests for "in rem" relief.
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saul Torres Bahena Pro Se
Movant(s):
Laurel Rosa, LLC Represented By Yevgeniya Lisitsa
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HARLEY-DAVIDSON CREDIT CORP
vs DEBTOR
Docket 41
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Constance Rebecca Paggett Represented By Joseph L Pittera
Movant(s):
Harley-Davidson Credit Corp., as Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF AMERICA, N.A.
vs DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
10:00 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cesar Pardini Represented By
Jennifer Ann Aragon
Movant(s):
Bank of America, N.A. Represented By Megan E Lees
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
DAIMLER TRUST
vs DEBTOR(S)
Docket 20
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) & (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Erick Aguilar Represented By Elena Steers
Joint Debtor(s):
Glenda Aguilar Represented By Elena Steers
Movant(s):
Daimler Trust Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HONDA LEASE TRUST
vs DEBTOR(S)
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Luis Alberto Hernandez Garcia Represented By
Sevag Nigoghosian
Joint Debtor(s):
Aura Marina Cruz Represented By
Sevag Nigoghosian
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
CHAMPERY REAL ESTATE 2015, LLC
vs DEBTOR
Docket 16
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. The automatic stay does not affect this property. See In re Hernandez, Case No. 2:15-bk-21193-VZ, Dkt. 31.
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re
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Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Roy Moralde Represented By
Louis J Esbin
Movant(s):
Champery Real Estate 2015, LLC Represented By
Amelia B. Valenzuela
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 5
- NONE LISTED -
Debtor(s):
Jose Alfredo Romo Represented By Jaime A Cuevas
Movant(s):
Jose Alfredo Romo Represented By Jaime A Cuevas Jaime A Cuevas Jaime A Cuevas Jaime A Cuevas
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
vs DEBTOR(S)
Docket 62
Tentative Ruling for 8/14/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see Stipulation, dkt. 64).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edgar A Gonzalez Represented By
Rene Lopez De Arenosa Jr
Joint Debtor(s):
Maria F Gonzalez Represented By
Rene Lopez De Arenosa Jr
10:00 AM
Movant(s):
Deutsche Bank Trust Company Represented By April Harriott
Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 85
Tentative Ruling for 8/14/18 (same as for 7/10/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the prior hearings, this Court continued the matter for the debtors to continue their pursuit of a loan modification (see dkt. 88). There is no tentative ruling, but the parties should be prepared to address the status of this matter.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Continue to 6/26/18 at 10:00 a.m. to address the following issues. Appearances are not required on 5/29/18.
Reasons: At the 4/10/18 hearing, this Court continued this motion for the debtors to pursue a loan modification. The debtors have filed supplemental
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evidence of a trial modification notice (dkt. 88).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 87).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bradley Leo Richards Represented By
Michelle A Marchisotto Sundee M Teeple Cynthia L Gibson
Craig K Streed
Joint Debtor(s):
Guadalupe Richards Represented By
Michelle A Marchisotto Sundee M Teeple Cynthia L Gibson
10:00 AM
Movant(s):
Craig K Streed
DEUTSCHE BANK NATIONAL Represented By
Matthew R. Clark III Sean C Ferry
Keith Labell Theron S Covey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 25
Tentative Ruling for 8/14/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 7/17/18, this Court was persuaded to continue the matter to this date at the parties' request. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 27).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 27).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Daniel Lee Martinez Represented By Michael E Clark
Movant(s):
U.S. Bank National Association, as Represented By
Tyneia Merritt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 61
Debtor(s):
Brent Green Represented By
R Grace Rodriguez
Joint Debtor(s):
Cheryl Jacobs-Green Represented By
R Grace Rodriguez
Movant(s):
WELLS FARGO BANK, N.A. Represented By Robert P Zahradka Darshana Shah
Oneika White-Dovlo Jenelle C Arnold Corey Phuse
Megan Porter Sabekhon Nahar Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
LOANDEPOT.COM, LLC
vs DEBTOR
Docket 27
Debtor(s):
Nora Del Rocio Benoit Represented By
Ramiro Flores Munoz
Movant(s):
LoanDepot.com, LLC d/b/a Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ALAN S. VERTUN, WILLIAM SCHMIDT AND BARBARA SCHMIDT, JANICE WASSERMAN AND JEFFREY CONSTINE
vs DEBTOR
Docket 8
Debtor(s):
Natalie V Howard Pro Se
Movant(s):
Alan S Vertun, William Schmidt and Represented By
Julian K Bach
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO.
vs DEBTOR
Docket 59
Tentative Ruling for 8/14/18 (same as for 7/10/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 61).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Darlene Goodrum Represented By Brad Weil
Movant(s):
Deutsche Bank National Trust Represented By Merdaud Jafarnia
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CITIMORTGAGE, INC.
vs DEBTOR
Docket 274
Tentative Ruling for 8/14/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling but the parties should be prepared to address: Has the sale of the Tchoupitoulas property closed? See Status Report (dkt. 292).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue to 8/14/18 at 10:00 a.m., the day after the current date set for closing of the sale of the Tchoupitoulas property. See Status Report (dkt. 292). Appearances are not required on 8/7/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court has reviewed the debtor's status report (dkt. 289) and the movant's supplemental proof of service (dkt. 288). There is no tentative ruling, but the parties should be prepared to inform this Court about any other updates regarding the Tchoupitoulas Property, the Santa Ynez Property and the debtor's payments to the movant.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the effect of the debtor's failure to perform the terms of the confirmed plan; the debtor's response (dkt. 276); the movant's reply papers (dkt. 277-79); and the debtor's further papers including his request for a continuance (dkt. 280-84).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
Movant(s):
CitiMortgage, Inc. Represented By Todd S Garan
11:00 AM
Docket 19
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
This Court notes movant's noncompliance with Judge Bason's calendaring procedures. The tentative ruling is to excuse that noncompliance and to grant the requested relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lorena Nunez Represented By Hector Vega
Trustee(s):
Carolyn A Dye (TR) Pro Se
11:00 AM
Docket 57
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ignacio Sport Bar & Grill, Inc Represented By Joel F Tamraz
Trustee(s):
Carolyn A Dye (TR) Represented By Christian T Kim James A Dumas Jr
11:00 AM
Docket 55
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ignacio Sport Bar & Grill, Inc Represented By Joel F Tamraz
Movant(s):
LEA Accountancy, LLP Pro Se
Trustee(s):
Carolyn A Dye (TR) Represented By Christian T Kim James A Dumas Jr
11:00 AM
Docket 1
NONE LISTED -
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
11:00 AM
Adv#: 2:18-01201 Hollister v. The Bird Nest, LLC et al
Preservation of Avoided Transfers; and (4) Disallowance of Claim
Docket 1
NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel
Defendant(s):
The Bird Nest, LLC Represented By Howard Steinberg
Roman Catholic Archbishop of Los Pro Se The California Institute of the Sisters Pro Se
Plaintiff(s):
Dana Hollister Represented By David A Tilem
11:00 AM
Adv#: 2:18-01203 The Bird Nest, LLC et al v. Hollister
Docket 1
NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel
Defendant(s):
Dana Hollister Pro Se
Plaintiff(s):
The Bird Nest, LLC Represented By Howard Steinberg
Roman Catholic Archbishop of Los Represented By
Howard Steinberg
The California Institute of the Sisters Represented By
Howard Steinberg
11:00 AM
Adv#: 2:18-01068 Los Angeles County Sheriff's Dapartment v. Gandarilla et al
Docket 1
Tentative Ruling for 8/14/18:
Take this status conference off calendar for the reasons stated in the parties' joint status report (adv. dkt. 48). This Court anticipates issuing a ruling shortly. Appearances are not required on 8/14/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 7/17/18:
Continue to 8/14/18 at 11:00 a.m. for this Court to issue its ruling per the parties' joint status report (adv. dkt. 45). Appearances are not required on 7/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Continue to 8/14/18 at 11:00 a.m. for this Court to issue its ruling per the
11:00 AM
parties' joint status report (adv. dkt. 45). Appearances are not required on 7/17/18.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 46).
Current issues.
Deadlines: This adversary proceeding has been pending since 2/28/17. This issue regarding Los Angeles County Sheriff's Department's recovery of attorneys' fees appears to have been resolved by Order of this Court (adv. dkt. 40), pending entry of a subsequent order by which the movant will deposit the balance of the fees with the Court.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Entry of final judgment (adv. dkt. 42, 46). Proposed order: Movant is directed to lodge a proposed order disposing of this adversary proceeding by summary judgment or similar mechanism via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Mediation. In the event the parties are unable to resolve this adversary proceeding in the manner listed above and/or unresolved issues remain, the tentative ruling is to set a deadline of 7/31/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 6/19/18:
Appearances required. This Court has reviewed the parties' joint status report (adv. dkt. 30) and the other filed documents and records in this adversary proceeding, as well as relevant documents in the bankruptcy case.
Background. Plaintiff, the Los Angeles County Sheriff's Department ("Sheriff") has filed its complaint in interpleader against the debtor, her Chapter 13 Trustee ("Trustee"), and Cardlock Fuels Systems, Inc. ("Cardlock"). Sheriff levied on funds held in the debtor's bank account at Wells Fargo Bank, NA and received about $32,775.00 (the "Levied Funds") but the debtor and Cardlock dispute who should receive the funds.
Cardlock asserts that it owns the funds; but the debtor asserts that Cardlock has only a secured claim to the funds and that those funds should be returned to the debtor and Cardlock will continue being paid over time (without interest). Cardlock is listed as a secured creditor in the amount of
$43,066.84 in the debtor's chapter 13 plan (case dkt. 2, p.5), which this Court previously confirmed (case dkt. 19), and in any event the debtor's plan promises to pay unsecured creditors 100% of their claims (without interest). Cardlock's proof of claim (Claim No. 3-1) asserts that it is owed $45,544.66 as of the petition date, based on a judgment for goods sold, which it asserts is secured by a judgment lien. In other words, the debtor proposes to pay Cardlock over 5 years, without interest (regardless whether Cardlock's claim is treated as secured or unsecured under the plan), and Cardlock seeks immediate payment of approximately 3/4 of the total debt using the Levied Funds.
Sheriff apparently has no reason to care about any of this. Sheriff only seeks a judgment that, among other things, would permit the deposit of the Levied Funds with this Court while restraining all of the defendants from involving Sheriff any further.
Before Sheriff filed the complaint, the debtor attempted to obtain turnover of the funds by filing a motion for turnover (case dkt. 31). This Court issued an order (dkt. 34, the "Non-Turnover Order") denying that motion for the following reasons (copied from that order):
Facts
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Neither party provides any copy of any levying documents, or any declarations to support their allegations. Nevertheless, the following facts appear to be undisputed.
Prepetition, on February 21, 2017, at the request of judgment creditor Cardlock, The Los Angeles County Sheriff's Department ("Sheriff") served a Writ of Execution and notice of levy on Wells Fargo Bank, NA ("Bank") where the debtor held a bank account. On February 28, 2017 the debtor filed her bankruptcy petition.
Postpetition, on March 2, 2017, Bank delivered to Sheriff $32,775 (the "Funds"). See dkt. 31, p.3:1-12 and dkt. 33, pp.1:25-2:8.
Legal authority
Neither party cites any authority for their principal arguments.
The authorities they do cite appear to be mostly the wrong statutes and irrelevant decisions.
The debtor asserts that the Funds are property of the estate under the general principles of 11 U.S.C. 541, without any citation to California law defining when ownership of funds is transferred away from the depositor/debtor. See In re Hernandez, 483 B.R. 713, 720 (9th Cir. BAP 2012) ("Whether a debtor's interest constitutes 'property of the estate' is a federal question to be decided by federal law [but] the nature and extent of the debtor's interest in property must be determined by nonbankruptcy law.") (citations and internal quotation marks omitted, emphasis added).
The debtor next argues that Cardlock and Sheriff should be ordered to return the Funds to the debtor "under 11 U.S.C. [section] 105" (dkt. 31, p.4:6), which is the general authorization for the Bankruptcy Court to issue any order or judgment that is "necessary or appropriate to carry out the provisions of this title." The debtor ignores 11 U.S.C. 542 and 543, which are the specific statutory provisions governing turnover to the estate of property of the estate.
Cardlock argues, also without citation, that when the Funds "were levied" they "ceased being the Debtor's property" - Cardlock does not specify whether the time when the Funds "were levied" means when the writ and notice were served on Bank (prepetition), or when the Funds were delivered by Bank to Sheriff (postpetition).
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Dkt. 33, p.2:24-25. Cardlock may mean the latter because in the next sentence it states that when the Funds "were delivered from [Bank] to [Sheriff], title to the property was vested in creditor [Cardlock]" (dkt. 33, pp.2:25-3:4) based on a decision from the Seventh Circuit involving escrowed funds. See Fed. Deposit Ins.
Corp. v. Knostman, 966 F.2d 1133, 1142 (7th Cir. 1992). Cardlock does not cite any California law or any decision applying California law, nor any decision involving a levy by a sheriff (as opposed to escrowed funds).
This court declines to perform the parties' research for them.
Nevertheless, this court must determine based on general principles and who has what burden whether to grant or deny the debtor's motion. Accordingly, this court has performed some brief research on the following issues.
The debtor had an interest in the Funds as of the petition date
Although this court's brief research suggests that California law is not entirely clear, it appears that when a bank has not yet turned over funds to the sheriff prepetition, the levying creditor only has a lien not an ownership interest in the funds. See Hernandez, 483
B.R. 713, 721 (under Cal. Code Civ. P. 700.140(a)&(e), creditor obtains execution lien on amounts in deposit account at time of service on financial institution, and that lien terminates when the funds are paid to the levying officer, which implies that the debtor's interest is transferred at the latter time). (The statute was amended after Hernandez was decided, including designating paragraph "(e)" as paragraph "(f)," but the amendments do not appear to be material.)
Any postpetition termination of the debtor's interest in the Funds is void
Assuming that Cardlock is correct that the transfer from Bank to Sheriff terminates the debtor's interest in the Funds under California law, Cardlock has not suggested any reason why that transfer would not have violated the automatic stay of 11 U.S.C.
362(a). Therefore any such transfer apparently is void ab initio.
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See, e.g., In re Gruntz, 202 F.3d 1074 (9th Cir. 2000), and In re Schwartz, 954 F.2d 569 (9th Cir. 1992). (The debtor asserts, dkt.
31, p.3, n.1, that because the transfer from Bank to Sheriff occurred postpetition "the Debtor most likely has grounds to avoid the transfer of the Funds pursuant to 11 U.S.C. 549." This court expresses no opinion on that issue.)
The debtor has neither sought, nor established a basis for, turnover
The debtor cannot use 11 U.S.C. 105 to evade or enlarge the specific statutory provisions that govern turnover: 11 U.S.C. 542 and 543. So one of those latter statutes governs - this court does not decide which one (i.e., whether Bank and/or Sheriff qualify as a "custodian" under 11 U.S.C. 101(11) and 543), because for present purposes the issues are the same under each section.
This court also assumes without deciding that the debtor would have standing to seek turnover under 11 U.S.C. 542 or 543 (or, for that matter, standing to seek avoidance under 11 U.S.C. 544-549 and recovery under 550, although as Cardlock points out any such avoidance actions presumably would require an adversary proceeding under Rule 7001, Fed. R. Bankr. P.). Compare In re Cohen, 305 B.R. 886, 891-900 (9th Cir. BAP 2004) (chapter 13 debtor has standing to bring avoidance actions).
So far so good for the debtor's position. But it is not enough for the debtor to show that someone is in possession of property in which the bankruptcy estate has an interest. The debtor also must establish that any persons holding an interest in that property, such as Cardlock, will have their interests adequately protected. See 11
U.S.C. 363(e) (court "shall" provide adequate protection of person's interest in property proposed to be used, upon request); 11 U.S.C. 542(a) (turnover only applies to property that trustee may "use, sell, or lease" or that debtor may exempt, i.e., which is subject to section 363(e)); 11 U.S.C. 543(c)(1) (court shall "protect all entities" to which custodian of property has become obligated).
The debtor has not shown that simply turning over the Funds to the debtor would adequately protect Cardlock, or for that matter that such turnover would be an appropriate use of property of the
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estate. In sum, the debtor has neither requested relief under the applicable statutory provisions, nor established a basis for such relief.
This court expresses no opinion regarding the remaining arguments raised by Cardlock - e.g., that the debtor lacks "clean hands," or that this case should be converted to chapter 7. It is
unnecessary to reach the former issue, and the latter has not been properly presented (in the form of a motion to convert).
Current motions. Returning to Sheriff's interpleader complaint, the following motions are on calendar today.
Motion for default judgment against Trustee (adv. dkt. 19). The Clerk of this Court has entered a default against Trustee; Trustee has not responded to Sheriff's motion for a default judgment against her; and the tentative ruling is to grant that motion and enter a judgment substantially in the form attached as Exhibit B to Sheriff's motion. If that tentative ruling is adopted, Sheriff is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Sheriff's motion for a default judgment against Cardlock (adv. dkt. 17), and Cardlock's opposition (adv. dkt. 28) and motion to set aside entry of the Clerk's default and/or any default judgment (adv. dkt. 27). The tentative ruling is to set aside the Clerk's default against Cardlock, for the reasons stated in its motion. That moots Sheriff's motion for a default judgment. If that tentative ruling is adopted, Cardlock is directed to lodge proposed orders on both motions via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Status conference in this adversary proceeding.
Deposit funds in registry. The parties are directed to address why there is any reason not to grant a judgment or order authorizing and directing deposit of the Levied Funds into the registry of this Court, while restraining all of the defendants from involving Sheriff any further (in language substantially in the form proposed for the judgment against Trustee), and reserving any other issues (such as any claim by Sheriff for attorney fees). Although there
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is no pending motion for such a judgment or order, the tentative ruling is that if all non-defaulting parties agree to such relief then it would be appropriate to grant such relief. Among other things, that might reduce the Sheriff's ongoing attorney fees, to the benefit of all parties.
The tentative ruling is that if all parties agree to the foregoing then this Court should treat that as an oral motion for entry of Local Form F7067- 1.1.ORDER.REGISTRY.FUND entitled "Order on Motion: (A) To Deposit Funds Into the Court's Registry, or (B) To Disburse Funds Out of The Court's Registry." If this tentative ruling is adopted, Sheriff is directed to lodge that proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Who is entitled to the Levied Funds. The debtor, Cardlock and Sheriff are directed to address the following issues.
If debtor seeks recovery under 11 U.S.C. 522(h). The debtor potentially could seek to recover property that the debtor could exempt, pursuant to section 522(h). But as Cardlock points out, the debtor's bankruptcy Schedule C does not purport to exempt the Levied Funds (see case dkt. 1, at PDF p.17). The debtor has not amended those exemptions and perhaps cannot (e.g., it is not clear that the debtor could do so without giving up other exemptions that the debtor might not wish to give up).
If debtor seeks recovery of the Levied Funds as representative of the estate. As pointed out in the Non-Turnover Order, there is some authority that even if there is no applicable exemption the debtor has standing to seek avoidance of the levy on behalf of the estate (e.g., under 11
U.S.C. 549). But that would require commencement of an adversary proceeding.
In addition, Cardlock has pointed out that the debtor did not disclose the existence of these funds in her bankruptcy schedules, and based on that fact Cardlock's proposed Answer (attached to its motion to avoid the Clerk's default) raises various defenses to turning over the funds to the debtor. In addition, if the debtor is not able to exempt the funds then those funds presumably would have to be used for the benefit of the estate and creditors, which probably means that any recovery of the Levied Funds would have to be followed by a distribution of the Levied Funds either (i) for truly necessary
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expenses (but the debtor has not suggested any such expenses) or else (ii) back to creditors - i.e., the money might essentially go in a circle, from Cardlock/Sheriff to this Court's registry, and then to the debtor for distribution to creditors, including Cardlock.
In sum, there appears to be a substantial risk that the expense and delay for both the debtor and Cardlock will far exceed any potential net benefit to anyone. Therefore the parties should be prepared to address why they cannot agree to some arrangement whereby some portion of the Levied Funds would be paid to Sheriff, to the extent, if any, that Sheriff has a claim for attorney fees or other costs or expenses under applicable law, and then the remainder would be divided between Cardlock and the debtor (either for re-distribution to other creditors, or for the debtor's truly necessary expenses).
None of this has been briefed, and this Court emphasizes that all of the foregoing is only one possible resolution. This Court's hope is that the foregoing may suggest a path toward consensual resolution.
If the parties are unable to reach a consensual resolution. If some or all issues remain unresolved, the parties are directed to address the following issues.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. If the parties cannot reach a consensual resolution
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without the assistance of a mediator, is there any reason why this Court should not order mandatory mediation? Again, this Court's concern is that the expenses to all parties of litigation far exceed the net benefit any party is likely to gain.
Deadlines: This adversary proceeding has been pending since 2/28/17. Even if the parties do not reach a consensual resolution, it appears that there will be very little left to determine in this adversary proceeding - perhaps only whether Sheriff is entitled to attorney fees. The parties are directed to address what issues remain, and whether discovery is needed on those issues or if, instead, they can be resolved through a motion for summary judgment or similar mechanism. Because that seems likely, the tentative ruling is not to set any discovery cutoff or other deadlines at this time, but instead to set a continued status conference for 7/17/18 at 11:00
a.m. with a brief status report due 7/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 5/22/18:
Continue to 6/19/18 at 11:00 a.m. to be concurrent with the hearing on the motion of Cardlock Fuels System, Inc. ("Cardlock") to set aside the Clerk's entry of default against it. Appearances are not required on 5/22/18.
Analysis. It appears that the funds levied by the Los Angeles County Sheriff's Department ("Sheriff") might properly belong to the debtor, or to Cardlock (if it can obtain relief from default), or to the bankruptcy estate (given the debtor's alleged nondisclosure in her bankruptcy papers of her claim to the funds at issue). See adv. dkt. 27, Ex.A, at pp.3:11-4:14 (Cardlock's affirmative defenses, asserting that either it or the debtor's bankruptcy estate owns the funds, not the debtor). Until it is determined whether or not the Clerk's default against Cardlock will be vacated, it is premature to address the motion for a
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default judgment against Cardlock. In addition, given the potential interests of the bankruptcy estate in the funds, and the possible lack of anyone to represent the estate if a default judgment were to be entered against Cardlock, it is premature to enter a default judgment against the other possible representative of the estate - the Chapter 13 Trustee.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Laura Elena Gandarilla Represented By Leonard Pena
Defendant(s):
Laura Elena Gandarilla Represented By Leonard Pena
Cardlock Fuels System, Inc. Represented By Thomas J Tedesco
Plaintiff(s):
Los Angeles County Sheriff's Represented By Jacquelyn H Choi
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
and for setoff pursuant to 11 U.S.C. section 553 fr. 01/05/16, 02/23/16, 03/22/16, 4/5/16, 4/12/16,
5/16/16, 7/19/16, 8/9/16, 9/6/16, 10/11/16, 11/1/16,
2/21/17, 4/11/17, 5/23/17, 8/8/17, 9/12/17, 1/23/18,
2/27/18, 4/10/18
Docket 1
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
Plaintiff(s):
Official Committee of Creditors Represented By Christopher Celentino Peter W Bowie
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Fariba Cohen Represented By
Michael H Weiss
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Adv#: 2:15-01334 Official Committee of Creditors Holding Unsecured v. Brager Tax Law
fr. 8/8/17, 9/12/17, 1/23/18, 2/27/18, 4/10/18
Docket 47
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Brager Tax Law Group, a Represented By Dennis N Brager J Scott Bovitz
Dennis N. Brager, a Professional Represented By
J Scott Bovitz
Plaintiff(s):
Official Committee of Creditors Represented By Christopher Celentino Peter W Bowie
Fariba Cohen Represented By
Michael H Weiss
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Adv#: 2:17-01174 Stardust Vacation Club and Americana Vacation Club v. MacMillan
fr. 5/2/17, 06/06/17, 8/22/17, 11/14/17, 01/30/18, 5/1/18, 6/26/18
Docket 1
Tentative Ruling for 8/14/18:
Set a deadline of 8/17/18 for the parties to file a corrected copy of their status report (adv. dkt. 31, which has illegible text at the top of p.2), and continue this status conference to 9/18/18 at 11:00 a.m., with a brief status report due 9/4/18 (unless this matter is mooted by this Court approving the parties' settlement). See adv. dkt. 31. Appearances are not required on 8/14/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Continue to 8/7/18 at 11:00 a.m., with a brief status report due 7/24/18 (unless this matter is mooted by this Court approving the parties' settlement). See dkt. 29 (status report). Appearances are not required on 6/26/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This court has reviewed the parties' joint status report (dkt. 27).
Mediation. The tentative ruling is to order mandatory mediation (again), with a deadline of 5/15/18 for the parties to lodge proposed mediation order (s).
Deadlines: This adversary proceeding has been pending since 2/24/17. Due to the parties' prior delays and an anticipated settlement the normal deadlines for completion of discovery and other matters have not been applied. The tentative ruling is to set the following deadlines, to run concurrent with the parties' mediation. The parties are cautioned that once the following deadlines have been established this Court is unlikely to be persuaded to amend them.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 9/3/18. Expert(s) - deadline for reports: 9/17/18.
Expert(s) - discovery cutoff (if different from above): 9/24/18. Dispositive motions to be heard no later than: 11/6/18.
Joint Status Report: 6/12/18.
Continued status conference: 6/26/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/11/17.
Pretrial conference: 11/27/18 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 12/6/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 12/10/18 at 9:00 a.m.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the results of their mediation. In future, the parties are cautioned that they are required under the Local Bankruptcy Rules to file a status report.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Continue to 11/14/17 at 11:00 a.m. in view of the parties' mediation scheduled for 10/27/17 (adv. dkt. 18). Appearances are not required on 8/22/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 6/6/17:
Appearances required. The court has reviewed the parties' joint status report
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(dkt. 10) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 2/24/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 7/21/17. Expert(s) - deadline for reports: 8/4/17.
Expert(s) - discovery cutoff (if different from above): 8/18/17. Dispositive motions to be heard no later than: 9/29/17.
Joint Status Report: 8/29/17.
Continued status conference: 9/12/17 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/11/17.
Pretrial conference: 10/17/17 at 2:00 p.m.
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Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: 10/20/17 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 10/25/17 at 9:00 a.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Stardust Vacation Club and Represented By Bruce Grego
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18
Docket 1
Tentative Ruling for 8/14/18:
Continue to 10/9/18 at 11:00 a.m. Brief status report due 9/25/18. Appearances are not required on 8/14/18.
This Court has reviewed the plaintiff's status report (adv. dkt. 41) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. docket number(s) 22, and at the hearing on 12/19/17).
Deadlines: This adversary proceeding has been pending since 4/7/17. Those deadlines that are appropriate to set at this point have been set. See Order (adv. dkt. 45).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Mediation. What is the status of the parties' mediation (see Order, adv. dkt. 36).
Deadlines: This adversary proceeding has been pending since 4/7/17. This Court was persuaded at the prior status conference not to set new deadlines until after mediation. If the matter has not been resolved then the tentative ruling is to set a continued status conference for 8/14/18 at 11:00 a.m., with a brief status report due 7/31/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This Court has reviewed the parties' joint status report (dkt. 35).
Mediation. The parties' latest status report requests mediation. See adv. dkt. 35, p.3, section E.3. This request is puzzling.
At the 2/27/18 status conference, this Court set a deadline of 3/13/18 for the parties to lodge a proposed mediation order, which was later memorialized in a written order (adv. dkt. 33, 1st ordering paragraph adopting attached tentative ruling for 2/27/18, para. "(2)"). No such proposed mediation order was ever lodged with this Court. This is not the first time that the have ignored this Court's order regarding mediation (see tentative ruling for 2/27/18, para. "(1)," reproduced below).
The tentative ruling is to sanction both counsel $200 for repeatedly disregarding this Court's orders regarding mediation, and to set yet another deadline - 5/15/18 - for the parties to lodge a mediation order. The parties are cautioned that continued disregard of this Court's orders will result in
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more serious sanctions and/or other consequences.
Deadlines: This adversary proceeding has been pending since 4/7/17. This Court previously has set deadlines (adv. dkt. 29, exhibit, adopting tentative ruling for 1/30/18, para. "(2)"): e.g., a discovery cutoff of 5/1/18. The parties appear to have ignored those deadlines.
Their latest status report states (adv. dkt. 35, p.2, section B.3.) that they both expect to complete discovery by "July, 2018," i.e., after the discovery 5/1/18 cutoff. The parties' discovery schedule also appears to be incompatible with this Court's order regarding the 6/26/18 deadline for dispositive motions to be heard. See adv. dkt. 29.
Neither party has requested an extension of the deadlines previously ordered by this Court (either formally, by motion, or even informally in the status report). In setting deadlines this Court has attempted to apply a careful analysis of the parties' legal theories and factual allegations, the parties' status reports, this Court's available hearing dates, how much time might be needed for mediation, and other matters. Disregarding this Court's orders requires additional work by this Court to re-determine deadlines and/or address the consequences of missed deadlines.
The tentative ruling is to sanction both counsel $100 for ignoring this Court's previously ordered deadlines (with a caution, again, that continued disregard of this Court's orders may lead to greater adverse consequences). The tentative ruling is also to set a deadline of 5/15/18 for the parties to lodge a proposed agreed order setting realistic, binding new deadlines. Finally, the tentative ruling is to set a continued status conference for 5/22/18 at 11:00 a.m., the sole anticipated purpose of which will be to address whether the parties have complied with this Court's latest directions (set forth above) and, if not, to address what sanctions to impose. The parties are directed not to file any status report in advance of that status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 2/27/18:
Continue to 5/8/18 at 11:00 a.m. with a brief status report due 4/24/18. Appearances are not required on 2/27/18.
Background. This adversary proceeding has been pending since 4/7/17, and is being jointly administered with Adv. No. 2:17-ap-01551 - all papers are to be filed in this adversary proceeding (adv. dkt. 26). The discovery cutoff and some other deadlines have been set, but no trial date or pretrial conference date has yet been set (adv. dkt. 29). Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 29). This Court previously ordered mediation (adv. dkt. 17) but at the status conference on 12/19/17 the parties reported that they had failed to comply with that order and the parties' latest status report (adv. dkt. 31) requests that they ordered to mediation again.
Mediation. The tentative ruling is to set a deadline of 3/13/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required. The court has reviewed the parties' joint status report (adv. dkt. 24) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority
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have been determined and/or waived or forfeited (docket number(s) 22, and at the hearing on 12/19/17).
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/13/18
Continued status conference: 2/27/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Trial date and pre-trial schedule: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the status of this adversary proceeding.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
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Appearances required. The court has reviewed the parties' joint status report (dkt. 12) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/6/17. Expert(s) - deadline for reports: 11/20/17
Expert(s) - discovery cutoff (if different from above): 12/4/17 Dispositive motions to be heard no later than: 1/25/2018 Joint Status Report: 12/5/17
Continued status conference: 12/19/17 at 11:00 a.m. Trial date and pre-trial schedule: To be set at a later time.
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C Vanderhoof
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:17-01485 Gonzalez v. Macmillan et al
fr. 12/5/17, 02/13/18, 3/20/18, 4/17/18, 07/17/18
Docket 1
Tentative Ruling for 8/14/18:
Continue to 10/16/18 at 11:00 a.m., with a brief status report due 10/2/18.
See status report (adv. dkt. 51). Appearances are not required on 8/14/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Continue to 8/14/18 at 11:00 a.m. as requested by the parties in their joint status report (see adv. dkt. 50), with a brief status report due 7/31/18.
Appearances are not required on 7/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should apprise this court about the status of any appeals or other matters (see dkt. 31, order granting in part plaintiff's motion for summary judgment, and dkt. 35, notice of appeal). The tentative ruling is to set a continued status conference for 7/17/18 at 11:00 a.m., with a brief status report due 7/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/20/18:
Appearances required.
Motion for summary judgment (adv. dkt. 14-18, the "MSJ"); opposition papers (adv. dkt. 22-25); and reply papers (adv. dkt. 26-27). The tentative ruling is to deny in part and grant in part the MSJ, as set forth below.
Legal standards. The legal standards governing motions for summary judgment are well known, do not appear to be disputed by the parties, and need not be repeated in this tentative ruling.
First claim for relief (fraudulent transfer). Although the complaint (adv. dkt.1) asserts fraudulent transfer claims under both California law and the Bankruptcy Code, the MSJ limits this to 11 U.S.C. 548. The MSJ also asserts only constructive, not actual, fraud. See adv. dkt. 14, pp.2:21-3:1.
The complaint alleges less than reasonably equivalent value (11
U.S.C. 548(a)(1)(B)(i)) - namely, transfers by the debtors/defendants for no value from the debtors and/or their revocable trusts (the assets of which apparently could be reached by creditors) to irrevocable trusts. But to establish the elements of a constructively fraudulent transfer the plaintiff must
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also establish one of three types of insolvency (commonly referred to as "balance sheet," "inadequate capital," or "cash flow" insolvency) or else a transfer to an insider under an "employment contract." See 11 U.S.C. 548(a) (1)(B)(ii)(I)-(IV). There is no allegation about any employment contract, so the plaintiff must establish some type of insolvency.
The MSJ refers to balance sheet insolvency (11 U.S.C. 101(32A)). But the complaint never alleges that type of insolvency, so the plaintiff cannot be granted partial summary judgment as to that element (11 U.S.C. 548(a)(1)(B) (ii)(I)).
The complaint alleges inadequate capital and inadequate cash flow (in language that roughly parallels 11 U.S.C. 548(a)(1)(B)(ii)(II)&(III)). But the MSJ extrapolates that those types of insolvency could be presumed based on the bankruptcy schedules many months after the transfer, and from the sheer number of lawsuits and eventual judgments against the defendants and other circumstantial evidence. Those things might (or might not) be persuasive at trial, but they are insufficient to establish a lack of genuine issue of fact.
Second claim for relief (declaratory relief related to nature of the trusts). The complaint (adv. dkt. 1, para. 23) seeks a declaratory judgment (i) that the debtors/defendants are "beneficiaries" of the trusts within the meaning of California Probate Code 15304, (ii) that the benefits the debtors/defendants receive from the trusts are "property of the estate" under 11 U.S.C. 541, and (iii) that the trusts qualify as "self-settled trusts" under California law, which the MSJ uses as shorthand for a trust the assets of which are reachable by creditors.
Various provisions of the Bankruptcy Code define what property is part of the bankruptcy estate:
The bankruptcy estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). It does not include, however, "any power that the debtor may exercise solely for the benefit of another," 11
U.S.C. § 541(b)(1), nor does it include "[p]roperty in which the debtor holds ... only legal title and not an equitable interest." 11
U.S.C. § 541(d). Similarly, the estate does not include property containing "[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law." 11 U.S.C. § 541(c)(2). [In re Cutter, 398
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B.R. 6, 18-19 (9th Cir. BAP 2008).]
Under California law:
If the settlor is a beneficiary of a trust created by the settlor and the settlor’s interest is subject to a provision restraining the voluntary or involuntary transfer of the settlor’s interest, the restraint is invalid against transferees or creditors of the settlor. The invalidity of the restraint on transfer does not affect the validity of the trust.
If the settlor is the beneficiary of a trust created by the settlor and the trust instrument provides that the trustee shall pay income or principal or both for the education or support of the beneficiary or gives the trustee discretion to determine the amount of income or principal or both to be paid to or for the benefit of the settlor, a transferee or creditor of the settlor may reach the maximum amount that the trustee could pay to or for
the benefit of the settlor under the trust instrument, not exceeding the amount of the settlor’s proportionate contribution to the trust. [California Probate Code 15304]
The California Supreme Court has held that to the extent that the settlor of a trust is also a beneficiary, creditors can reach the property held by the trust:
It is against public policy to permit a man to tie up his property in such a way that he can enjoy it but prevent his creditors from reaching it, and where the settlor makes himself a beneficiary of a trust any restraints in the instrument on the involuntary alienation of his interest are invalid and ineffective. Since [the settlor] was the sole beneficiary, all the property in the trust is subject to the claims of his creditors. [Nelson v. Cal. Trust Co., 33 Cal.2d 501, 501-02 (1949) (emphasis added)]
These principles have been more recently reaffirmed in a decision of the Ninth Circuit Court of Appeals:
[U]nder California law, a settlor of a spendthrift trust cannot also act as beneficiary of that trust (i.e., California law prohibits "self-settled" trusts). See Cal. Prob.Code § 15304(a) (West 1987). California law voids self-settled trusts to prevent individuals from placing their property beyond the reach of their creditors while at the same time still reaping the bounties of such property. See
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Nelson v. California Trust Co., 33 Cal.2d 501, 202 P.2d 1021,
1021 (Cal. 1949). [In re Moses, 167 F.3d 470, 473 (9th Cir.
1999)]
In addition, the MSJ cites authority that if beneficiaries exercise
"excessive" control over a trust then under California law they cannot "shield that trust with an anti-alienation provision lacking true substance." In re Moses, 167 F.3d 470, 473 (9th Cir. 1999) (citation omitted) (emphasis added). See also In re Cutter, 398 B.R. 6, 22 (9th Cir. BAP 2008). MSJ (adv. dkt. 14, p.10:1-14).
The debtors argue that their situation is different from that in Cutter because "the Debtor in Cutter could potentially use all the Trust's principal and income to maintain his standard of living, without limitation" whereas "[t] here is no such provision" in the debtors' trusts. Dkt. 22, p.3:22-26 (italics added to case name). That distinction of Cutter (and the other authorities cited above) is unpersuasive.
The MSJ points to the following facts in support of its argument that (i) the debtors are also beneficiaries and (ii) the anti-alienation provisions of the trust lack "true substance." The debtor/defendants do not raise any genuine contrary issues of fact.
The debtors deducted mortgage interest and real estate taxes on their 2015 tax returns. See dkt. 18, p.4:5-9 (and evidence cited therein).
During the "initial period" of the trusts (the earlier of the grantors' deaths or 16 years) the debtors can continue to live in the property rent-free. See Dkt. 18, p.4:10-15 (and evidence cited therein).
During that same period, any net income or excess cash is distributed to the debtors. See Dkt. 18, p.4:16-21 (and evidence cited therein).
The debtors can manage the property as "absolute owners."
See Dkt. 18, p.4:22-28 (and evidence cited therein).
The debtors can loan money to themselves and/or use the property to secure loans to themselves. See Dkt. 18, p.5:2-7 (and evidence cited therein).
During their lifetime, the debtors can make discretionary distributions to their children, and upon their deaths the trust assets are to be distributed to their children. See Dkt. 18, p.5:8-12 (and evidence cited therein).
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Based on the foregoing, it appears that the debtors are indeed
beneficiaries of the trusts to a large extent, and moreover the anti-alienation provisions of the trust lack "true substance" as that term has been used in the cited authorities. Accordingly, the tentative ruling is to grant the MSJ on the second claim for relief.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20). The parties should be prepared to address whether there are any non- mooted matters left to resolve in this adversary proceeding, if this Court is not persuaded to depart from the foregoing tentative ruling on the MSJ.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/13/18:
Continue this status conference to be concurrent with the hearing on the pending summary judgment motion, which is presently scheduled for 3/20/18 at 11:00 a.m. Appearances are not required on 2/13/18.
This court has reviewed the parties' late-filed joint status report (adv. dkt. 10, 11) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (at the hearing on 12/5/17). See also adv. dkt. 10, 11.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 5) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
This court recognizes that, at least at this stage, the attorney who filed the answer (dkt. 4) for both trustees of the trust has also executed the Status Report (dkt. 5) on behalf of one of the defendant trustees (the debtor/defendant) asserting that neither of them can consent to this Bankruptcy Court entering a final judgment because third party beneficiaries of the trust allegedly have a right to have their rights litigated "outside of this
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venue." Counsel for the answering defendants should be prepared (a) to explain whether this is a Stern objection or something else and (b) whether both answering defendants or only one of them takes this position, and if the former, why he did not execute the status report on behalf of both of them.
Counsel for the plaintiff should be prepared to address whether the plaintiff contends that there are no additional parties who need to be joined, and why.
Mediation. The plaintiff suggests in the Status Report (adv. dkt. 5) that mediation, if any, should not be ordered before dispositive motion(s) are heard, which the plaintiff anticipates will be by 3/1/18. The tentative ruling is to revisit the issue of mediation after that date.
Deadlines: This adversary proceeding has been pending since 9/26/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 3/1/18 Expert(s) - deadline for reports: 2/20/18
Expert(s) - discovery cutoff (if different from above): 3/1/18 Dispositive motions to be heard no later than: 3/13/18 Joint Status Report: 1/30/18
Continued status conference: 2/13/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 4/10/18 Pretrial conference: 4/17/18 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 4/19/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 4/23/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18
Docket 1
Tentative Ruling for 8/14/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The court has reviewed the parties' joint status report (adv. dkt. 23) and the other filed documents and records in this adversary proceeding.
The plaintiff states (dkt. 23, p.2) that he requested entry of a default against defendants Andrae Perez and Accelerated Capital Group, Inc., but the Clerk of this Court has issued notices of non-entry of defaults (dkt. 15, 16). When will the plaintiff correct the deficiencies?
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. docket number(s) 23).
Deadlines: This adversary proceeding has been pending since 11/21/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 12/31/18 Expert(s) - deadline for reports: 1/14/19
Dispositive motions to be heard no later than: 2/11/19 Joint Status Report: 9/4/18
Continued status conference: 9/18/18 at 11:00 a.m.; brief status report due 9/4/18.
Lodge Joint Proposed Pre-Trial Order: TBD
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Pretrial conference: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing, this Court continued the matter to allow the parties time to meet and confer about the various deadlines that this court should set in this adversary proceeding and/or court-ordered mediation. This matter was further continued to today's date for the parties to participate in mediation on or about 5/21/18 (see Order, adv. dkt. 21). This Court also directed the parties to file a status report by 5/29/18, but the parties have not done so--for a second time.
There is no tentative ruling, but the parties are directed to address why they have not filed a status report, and to provide an oral status report, and are cautioned that continued failure to adhere to the applicable rules and orders of this Court may result in sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if
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advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing, this Court continued the matter to allow the parties time to meet and confer about the various deadlines that this court should set in this adversary proceeding and/or court-ordered mediation. This court also directed the parties to file a status report by 4/3/18, but the parties have not done so.
There is no tentative ruling, but the parties are directed to address why they have not filed a status report, and to provide an oral status report, and are cautioned that continued failure to adhere to the applicable rules and orders of this Court may result in sanctions. The tentative ruling is to continue this status conference to 5/29/18 at 11:00 a.m. with a brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties requested a brief continuance of this status conference from 2/27/18 to today's date (see Joint Status Report, adv. dkt. 10). At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). There is no tentative ruling, but the parties should be prepared to discuss the status of this case.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 3/6/18 at 11:00 a.m. Appearances are not required on 2/27/18.
Reasons: At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). The plaintiff and one defendant (the debtor) have now filed a joint status report (adv. dkt. 10) requesting a brief continuance.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address why they failed to file the required status report, and also the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l
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Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/6/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines/dates: This adversary proceeding has been pending since 11/21/17. The tentative ruling is to set the following deadlines/dates. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/6/18
Continued status conference: 2/27/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Docket 15
Please see the tentative ruling for the status conference (calendar no. 3, 8/14/18 at 1:00 p.m.).
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
Movant(s):
Patricia Ann Theus Represented By Onyinye N Anyama
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Docket 14
Appearances required.
Realistic budget? The cash collateral motion (dkt. 14) includes only
$100/mo. for maintenance, and nothing for pest control, utilities, repairs, etc. Is the budget realistic?
Local Form F 4001-2 (dkt. 16). Item "(ii)" states that the debtor is offering replacement lien "in excess of the dollar amount of the lien on cash collateral as of the petition date." What does the debtor mean by that? Is that appropriate?
Subject to satisfactory answers to the foregoing questions, the tentative ruling is to grant the motion on an interim basis, subject to the conditions set forth below, with a final hearing on 9/18/18 at 1:00 p.m., and a deadline of 8/20/18 for the debtor to file and serve a notice of the final hearing.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form F2081- 1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
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In addition to the postpetition security interests that are automatically
provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For
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example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506 (c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
Movant(s):
Patricia Ann Theus Represented By Onyinye N Anyama
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Docket 7
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has reviewed the debtor's filed status report (dkt. 17) and the other filed documents in this case.
Budget motion (dkt. 15). Grant on an interim basis, with a final hearing concurrent with the continued status conference (see below), and a deadline of 8/21/18 to file declaration(s) regarding the income of the debtor's spouse (see below). Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Debtor's spouse's income. The debtor's bankruptcy Schedule I reports that the debtor's spouse is a self-employed construction contractor, but that the spouse only earns $1,500/mo. in net income. Dkt. 1, at PDF p.32, line 8a. This Court takes judicial notice that there is considerable construction activity in this geographic area. Why is that income not higher?
In addition, there is no attached statement showing gross income, expenses, and the calculation of net income. That is contrary to the instructions for line 8a, and to this Court's order that for reporting purposes any spouse is to be treated as equivalent to the debtor (dkt. 6, para.3).
Deadlines/dates. This case was filed on 7/11/18.
Bar date: 10/29/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 9/18/18 at 1:00 p.m., brief status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
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Docket 7
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron Kevin Tang
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Docket 6
Tentative Ruling for 8/14/18:
Continue to the date and time set forth below. Appearances are not required on 8/14/18.
Current issues. This Cout has reviewed debtor's status report (dkt. 38) and other relevant pleadings.
This Court does not have any issues to raise sua sponte.
Dates/Deadlines. This case was filed on 5/28/18.
Bar date: 9/4/18 (timely served, dkt. 23, 25)
Plan/Disclosure Statement*: file by 9/25/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 10/16/18 at 1:00 p.m. Brief status report due 10/2/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Appearances required by counsel for the debtor and by the debtor themselves.
Current issues. This Court has reviewed the debtors' status report (dkt. 14), and the other filed documents and records in this case.
May MOR (dkt. 18). The MOR purports to cover the period from 5/28/18 (the petition date) to 5/31/18, but is essentially blank, including the section for disclosure of existing insurance coverage (dkt. 18, pdf p. 5). Debtors should be prepared to address (i) whether they have insurance coverage on their residential real property (and any other asset requiring insurance); and, if they do (ii) whether they read the MOR and understood it prior to signing.
Case Status Report (dkt. 14).
Budget Motion. The status report says that a budget motion is not required by Judge Bason's procedures (dkt. 14, pdf p. 3), but that is not correct. See Judge Bason's Procedures, Section VII.F ("Judge Bason requires the use of local forms F 2081-2.2.MOTION.BUDGET and F 2081- 2.2.ORDER.BUDGET"). Did counsel actually review the posted procedures? The tentative ruling is to set a deadline of 6/28/18 to file and serve a budget motion.
Consumers' confidential information. The status report states that the debtors do not have possession, custody, or control of consumers' confidential information (dkt. 14, pdf p. 10), but this Court questions whether that is accurate. What about customer lists from Hey Baby Sales, Inc.? Do the debtors claim any rights to those lists? (e.g. if the case were converted to a chapter 7 case, a sale of the debtors' interest in the company took place, and the buyer wanted the customer lists, would the debtors agree they could not retain or use the lists because the lists are owned by the company?).
The debtors should be prepared to address what steps they will take to protect confidential consumer information, and whether a consumer privacy ombudsman is required (11 U.S.C. 332).
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Deadlines/dates. This case was filed on 5/28/18.
Bar date: 9/4/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/25/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/14/18 at 1:00 p.m., brief status report due 7/31/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricardo Edmundo Lengua Represented By John A Harbin
Joint Debtor(s):
Pamela Lorraine Lengua Represented By John A Harbin
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Docket 9
Tentative Ruling for 8/14/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Court has reviewed the docket, the debtor's amended schedules (dkt. 33), and monthly operating report no. 1 (dkt. 20, for mo. ending 6/30/18). What is the $660 "miscellaneous expense" reported on p.5? Why was that not explained in the MOR?
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (timely served, dkt. 24).
Plan/Disclosure Statement*: TBD
Continued status conference: 9/18/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 7/17/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
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Current issues. This Court has reviewed the debtor's filed status report (dkt. 17) and the other filed documents in this case.
Secured claims. Why does the debtor's bankruptcy Schedule D (dkt. 18 at PDF p.11) list $0 in secured claims (not even a disputed claim?) even though the status report (dkt. 17) states that the case was filed to stop foreclosure? How can creditor and this Court rely on the accuracy of the bankruptcy schedules in view of such inconsistency?
Income. The debtor's bankruptcy Schedule I (dkt. 18 at PDF pp.19- 20) lists a total of $100/mo. in income taxes, medicare and social security. It lists $0 for net income from operating a business (line 8a) despite listing multiple businesses with alleged income: "YB Design, Inc.," "Management of Rabenu Enterprises, LLC," "Babysitting services," and "Cosmetic Sales." It fails to comply with the instructions in line 8a to "Attach a statement for each
... business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." The debtor appears to be ignoring the requirements to provide disclosure as to his own income and expenses and, under this Court's order (dkt. 9, para.3), to provide equal disclosure with respect to his spouse and their businesses. How can creditors and this Court rely on the accuracy of the bankruptcy schedules and future compliance with orders of this Court in view of such non-compliance?
Deadline for compliance. The tentative ruling is to set a deadline of 7/31/18 for the debtor to file amended bankruptcy schedules correcting not only the foregoing deficiencies that this Court has identified but also any other deficiencies that the debtor and his spouse and the debtor's counsel identify after carefully reviewing the documents that the debtor has filed. If in future this Court discovers other non-compliance with the debtor's obligations to provide accurate disclosures and to comply with this Court's orders, this Court may order the dismissal or conversion of this bankruptcy case, or other remedies.
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 8/14/18 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Benjamin Saeedian Represented By Raymond H. Aver
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Docket 149
Debtor(s):
Rescue One Ambulance Represented By Michael Jay Berger
Movant(s):
State Compensation Insurance Fund Represented By
Samantha L Brackfield Virginia Hoyt
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fr. 3/20/18, 3/21/18, 5/1/18, 5/22/18, 6/26/18, 8/2/18
Docket 5
Tentative Ruling for 8/14/18:
Appearances required.
Current issues. The debtor should provide an update on whether the Stockton property was sold at a foreclosure sale, and any other matters relevant to the prosecution of this case. In addition, the debtor is directed to lodge two proposed written orders memorializing this Court's oral rulings denying, for the reasons stated on the record at the hearing on 8/2/18,
the debtor's motion to reimpose the automatic stay (dkt. 161) and
the debtor's motion for authority to obtain credit (dkt. 176).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: TBD.
Continued status conference: 9/18/18 at 2:00 p.m. (no written status report is required)
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Appearances are not required on 6/26/18. See below for continued Status
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Conference date.
Current issues. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 8/14/18 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 5/22/18:
Appearances are not required on 5/22/18. See below for continued Status Conference date.
Current issues.
Sale motions for Stockton and Fresno properties (dkt. 106, 107). Subject to the following, the tentative ruling is to grant these motions on the terms agreed by the parties per dkt. 123, 124, 127, 128, 129, and 130.
Fresno dual agency. This Court's order (dkt. 112) authorized the
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retention of Newmark Grubb Pearson Commercial ("Newmark") as real estate broker but specified "no dual agency." Id. p.2:19 (emphasis in original.) The Fresno property sale motion concedes (dkt. 107, p.3, n.1) that Newmark has acted in a dual agency capacity. The tentative ruling is that, before lodging any proposed order granting the Fresno motion (dkt. 107), the debtor must file a declaration establishing that another broker has been brought into the transaction to represent one of the two parties, to be paid out of Newmark's commission. The tentative ruling is that such declaration must be served on the parties who have filed written opositions and on the U.S. Trustee.
Good faith findings (11 U.S.C. 363(m)). The tentative ruling is that, before lodging any proposed order that includes a "good faith" finding, the debtor must file a declaration from the buyer (not just the broker and/or debtor) and serve that declaration on the parties who have filed written opositions and on the U.S. Trustee.
Hearing to be set if needed. The tentative ruling is that if this Court is not satisfied with the foregoing declarations then this Court will issue an order setting a hearing to address whatever troubles this Court. This Court does not anticipate, however, that any hearing will be necessary.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 6/26/18 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. There is no tentative ruling at the present time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/22/18 at 2:00 p.m. (per 4/10/18 ruling)
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 76) and the pending motions for relief from the automatic stay and related matters. There is no tentative ruling at the present time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 63).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/22/18 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor and by the debtor(s)
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themselves. This court has reviewed the debtor's chapter 11 status report (dkt. 31) and all other filings in this case.
Current issues
Proposed bankruptcy counsel (dkt. 9, 30, 34, 45, 46). The debtor has now disclosed that the source of the prepetition retainer is Olympic Holdings, LLC ("Olympic"), the managing member of which is also the debtor's managing member, namely Mr. Mark Slotkin. The debtor has also clarified that although Olympic proposes to pay counsel's monthly bills as they come due (to be held in proposed counsel's client trust account until allowed), Olympic reserves the right to request reimbursement of prepetition payments as a general unsecured claim and postpetition payments as an administrative claim - would such postpetition request be on "substantial contribution" grounds? or on other grounds, such as an administrative priority loan (under 11 U.S.C. 364? without interest? with interest?)?
The foregoing facts and questions raise a host of ethical concerns. Any counsel who is paid by a third party (the "Funder") may be subject to conflicts of interest, especially if there are potential avoidance actions, reimbursement or contribution or indemnity claims, or other claims that could be investigated or brought against the Funder. At the hearing, proposed counsel must address the following.
Connections. What are all of the connections (as that term is used in FRBP 2014) among the Funder, the debtor, Mr. Slotkin, and proposed counsel? Are there any conflicts of interest, or potential conflicts? In the past, Judge Bason has followed authority holding that conflicts cannot be waived by a debtor in possession because it is representing the interests of creditors and has no authority to waive conflicts on creditors' behalf. In addition, to help in identifying all connections, Judge Bason's posted procedures require the use of Local Form 2014-1 (see those procedures at www.cacb.uscourts.gov for instructions how to fill out that form).
Terms. What are the precise understandings regarding the
funds?
Informed consent of Funder. Mr. Slotkin declares (dkt. 45,
para.5) that both he and Olympic understand that proposed counsel "does not represent us, and only represents the Debtor"? Have the members of Olympic (whoever they might be) been advised of this as well? Have all such persons been advised not only of representation issues but also attorney-
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client privilege issues, including what can happen if a trustee were to be appointed? Have all such persons been advised of duties of loyalty, whom counsel will continue to represent (if anyone) if a conflict develops, and other ethical and practical concerns? Who provided such advice: independent counsel, or the debtor's proposed counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing?
Other considerations. Has proposed counsel demonstrated or represented to this Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 7/16/18 (see Order, dkt. 21) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: concurrent with any other hearings in this case, and also on 5/1/18 at 2:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wooton Group, LLC Represented By Leslie A Cohen
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Docket 19
Tentative Ruling for 8/14/18:
Continue as set forth below. Appearances are not required on 8/14/18.
Current issues. This Court has reviewed the debtor's status report (dkt. 203) and other relevant pleadings in this case.
Siena r/s motion. Although the debtor requests that this status conference be continued to the same date and time as the pending motion (dkt. 205) by Siena Lending Group, LLC for relief from the automatic stay, that could disrupt the relief from stay calendar. As an alternative, the debtor may seek a consensual or non-consensual brief continuance of Siena's motion to be heard at the same time as the status conference, if that would be more appropriate or convenient for the parties.
B&B Bachrach, LLC Post-Confirmation Status Conference (2:17- bk-15292-NB). The tentative ruling is to continue the post-confirmation status conference to the date and time set forth below to be heard concurrently with the continued status conference in the B&B Liquidating, LLC case.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: TBD
Continued status conference: Continue to 9/18/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Continue as set forth below. Appearances are not required on 6/12/18.
Current issues.
Motion to Extend (1) Time to Assume or Reject Leases and (2) Term of Store Closing Sales (dkt. 172). The tentative ruling is to grant this motion. The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
B&B Bachrach, LLC Post-Confirmation Status Conference (2:17- bk-15292-NB). The tentative ruling is to continue the post-confirmation status conference to the date and time set forth below to be heard concurrently with the continued status conference in the B&B Liquidating, LLC case.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: 8/31/18
Continued status conference: Continue to 8/14/18 at 2:00 p.m.
Brief written status report due 7/31/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Continue as set forth below. Appearances are not required on 5/29/18.
Current issues. This Court has reviewed the debtor's status report (dkt.
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171), and other related pleadings.
Untimely Status Report and April MOR. This Court's tentative ruling for 5/1/18 (see below) directed the debtor to file a brief status report by 5/15/18, but the debtor did not file a status report until 5/18/18. Further, debtor did not file its April MOR until 5/23/18. The debtor is cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: 8/31/18
Continued status conference: Continue to 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
Current issues.
Background. At a post-confirmation status conference on 4/17/18 for B&B Bachrach (2:17-bk-15292-NB), debtor's counsel discussed the status of that case as well as the B&B Liquidating case. At counsel's request, this Court set a tentative bar date of 6/29/18, but advised counsel that this Court would hold off on issuing the bar date order (and may push the bar date back) pending resolution of the claims/noticing agent issues raised sua sponte by this Court.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to grant the motion on a final basis, as modified on the record at the hearing
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on 2/22/18, the interim order (dkt. 36), the amended budget (dkt. 65), and the second amended stipulation (dkt. 141). The debtor is directed to serve and lodge a proposed order via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Tentatively set as 6/29/18. DO NOT serve any notice at this time (this Court will prepare an order after the claims/noticing issues are resolved)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: continue to the date set forth at the start of this tentative ruling, brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances are not required.
Current issues. This Court has reviewed the debtor's status report (dkt. 78) and the other filed documents and records in this case.
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an a final basis.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on a final basis.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on a final basis.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to grant the motion on a final basis.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is
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to authorize consensual use of cash collateral as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), and the amended budget (dkt. 65).
Proposed Orders. The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 7/31/18 DO NOT serve any notice at this time (this Court will prepare an order after the status conference)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: 5/29/18 at 2:00 p.m., brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/22/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear (and pursuant to LBR 9075-1, any response may be presented orally).
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. As of the time when this tentative ruling has been prepared, there is no proof of service of the debtor's motions. The following tentative rulings are subject to (i) adequate proof of service and (ii) any oppositions presented at or prior to the hearing. In addition, rather than stating at length this Court's reasoning, the following tentative rulings adopt,
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to the extent relevant, the reasoning of this Court regarding similar motions in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46-47).
Notice/Service. Pursuant to LBR 9075-1(a)(2)(B), this Court has already orally and conditionally granted the debtor's request to shorten time on the motions identified below, subject to the right of any party in interest to object at or before the hearing to the adequacy of notice. With those limitations, the tentative ruling is to find notice adequate and grant the debtor's requests in its motions (e.g., dkt. 5, p.3:3-5) to excuse any requirement for telephonic notice provided that overnight delivery or other permissible expedited service (e.g., personal delivery, or email as permitted by applicable rules) has been delivered no later than 24 hours prior to this hearing to all persons with a pecuniary interest that could be adversely affected by the relief requested in each motion.
Immediate relief. With respect to any immediate relief described below, the tentative ruling is that the debtor has shown sufficient cause for such immediate relief under Rule 6003 (Fed. R. Bankr. P.), to the extent applicable, and the other rules and procedures governing relief on an emergency or expedited basis.
Limit Notice Motion (dkt. 3). The tentative ruling is to grant this motion, subject to the following adjustments. First, the Limited Service List must be augmented to include (i) junior lienholder Emerald Capital Funding, LLC ("Emerald") and (ii) the debtor's own bankruptcy counsel (because the motion apparently contemplates that all parties in interest - not just the debtor
- will be authorized to use the Limited Service List). Second, this Court contemplates limitations that parallel this Court's modifications to the parallel order in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 53).
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on the following conditions on an interim basis, with a final hearing at the same time as the continued status conference set forth below. No later than 2/23/18 the debtor must file a declaration of its CFO or other appropriate person certifying that, first, the debtor has taken measures to assure that
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prepetition debts are not paid out of its existing accounts (e.g., stopping payment on prepetition checks, except to the extent authorized by this court), and second, the debtor is maintaining sufficiently detailed books and records that, if it becomes necessary to analyze the debtor's finances as of the petition date, such analysis will not be impaired by the non-closing of the debtor's prepetition accounts.
Lease Rejection Motion (dkt. 7). The tentative ruling is to grant the motion on a final basis.
Employee Wages Motion (dkt. 8). The tentative ruling is to grant this motion immediately and on a final basis as to the employees, and to grant it as to the retention of Modern HR, Inc. ("HR") either immediately or at a continued hearing if the debtor can provide an offer of proof or evidence that HR's rates are within normal market rates for comparable services.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to approve the retention of Great American Group LLC and Tiger Capital Group LLC (collectively, "Liquidation Consultant") subject to the filing, no later than 2/23/18, of a satisfactory statement of Liquidation Consultant's distinterestedness on Local Form F 2014-1.STMT.DISINTEREST.PROF. In addition, the tentative ruling is to authorize the proposed sales of the debtor's inventory and furniture, fixtures and equipment ("FF&E"), free and clear of any liens, claims, encumbrances or other interests of all persons/entities who have been served with the motion, with all such interests to attach to proceeds of such sales, under 11 U.S.C. 363(b) and (f)(1), (2) and (5), for the reasons stated in the motion papers. In addition, the tentative ruling with respect to compliance with nonbankruptcy liquidation laws, restrictions in leases, and abandonment of property is to track the limitations in this Court's interim order on the parallel motion in the Bachrach case (no. 2:17-bk-15292- NB, dkt. 71). In addition, the tentative ruling is to grant all such relief on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Collateral/DIP Financing (dkt. 21, 22). The parties should be
prepared to address the following issues. (i) Is there any evidence that the debtor is "unable" to obtain credit by granting a "senior or equal lien" to the lien of Siena Lending Group, LLC ("Siena"), within the meaning of 11 U.S.C. 364(d)(1)(A)? (ii) Why would it be appropriate for this Court to approve a roll- up, cross-collateralization, and other provisions that generally are disapproved (see dkt. 22)? (iii) Why should this Court grant broader relief in
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this case than it did in approving a similar motion in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46, Ex.A, pp.5-9, and dkt. 50)? The tentative ruling is to authorize either consensual or non-consensual use of cash collateral and, if the terms can be modified sufficiently to be acceptable, the proposed DIP financing, on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Notice of continued hearings. The tentative ruling is to set a deadline of 2/27/18 for the debtor to file and serve a notice of the final hearing on all motions that are only granted on an interim basis, and to set the same deadline for the debtor to file any supplements or amendments to such motions, with deadlines of 3/6/18 for any opposition and 3/13/18 for any reply.
Proposed Orders. This court intends to file these tentative rulings on the docket (with the caption, "Memorialization Of Tentative rulings" or the like). Thereafter, if appropriate, all orders can grant or deny relief "for the reasons stated in the Memorialization Of Tentative Rulings (dkt. ), as modified or supplemented on the record at the hearing" (or similar language). The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
In view of the shortened time on the foregoing motions, parties in interest may appear and dispute the foregoing tentative rulings without prior notice to the debtor or the court (contrary to the usual requirements for "tentative rulings" under Judge Bason's Procedures, posted at www.cacb.uscourts.gov).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: March 20, 2018 at 2:00 p.m., status report due 3/6/18. (see order, dkt. 18).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
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1/23/18, 02/13/18, 5/1/18, 5/29/18, 6/12/18
Docket 1
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 2, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 2, 6/12/18 at 2:00 p.m.).
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 4, 5/29/18 at 2:00 p.m.).
Tentative Ruling for 5/1/18:
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required.
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Current Issues.
B&B Liquidating, LLC (2:18-bk-11744-NB). On 2/16/18 B&B Liquidating LLC ("BBL") filed a chapter 11 petition for relief before this court. In its "first-day" motions, BBL details the troubles B&B Bachrach ("BBB") encountered post-confirmation, which resulted in the need to liquidate. See e.g., BBL Liquidating Motion, dkt. 17.
BBB should be prepared to address the debtor's progress in liquidating the estate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Continue to 4/17/18 at 2:00 p.m. in view of the debtor's post-confirmation status report (dkt. 313). Brief status report due 4/3/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue to 2/13/18 at 2:00 p.m., in view of (a) the debtor's status report (dkt. 313) and (b) the inability of the Office of the United States Trustee to appear on 1/23/18 in view of the shutdown of much of the federal government. Note: Prior to 2/13/18 this court anticipates posting a tentative ruling for a further continuance to 4/17/18 at 2:00 p.m., unless a party in interest files a status report no later than 2/6/18 requesting to be heard on 2/13/18. Appearances
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are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Continue to 11/7/17 at 2:00 p.m. to be heard concurrent with the fee applications. Appearances are not required on 10/17/17.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/12/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any
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outstanding disputes with landlords, or other issues that are appropriate for disposition at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Bachrach, LLC Represented By Brian L Davidoff
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fr. 06/12/18
Docket 24
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the status conference in this case (calendar no. 5.1, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Continue to 7/10/18 at 1:00 p.m. to address the following issues. Appearances are not required on 6/12/18.
Reasons:
(1) Appraisal; date of valuation. The junior lienholder has requested (dkt. 31) additional time to obtain an appraisal. The debtor is directed to provide reasonable access for that purpose. The junior lienholder is directed to file and serve the appraisal at least two weeks before the continued hearing. Note: Judge Bason's tentative ruling is to require valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
At the continued hearing the parties should address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron
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fr. 5/29/18
Docket 12
Tentative Ruling for 8/14/18:
The tentative ruling is to deny the motion. Appearances are not required.
Analysis.
Background
At the hearing on 5/29/18 creditor US Bank agreed to waive the 30-day time limit in 11 U.S.C. 362(c)(3) (and no other creditors filed papers or appeared so they have forfeited and implicitly waived that time limit).
Accordingly, this Court continued the hearing to this date for the debtor to present clear and convincing evidence to rebut the presumption that she did not file this case in good faith.
(As set forth in the tentative ruling for 5/29/18, such a presumption exists because (a) the debtor failed to file case commencement documents in her Prior Case without substantial excuse and alternatively (b) because she has not presented enough evidence of a change in her non-rental income to believe in good faith, as of the petition date, that this case has a reasonable possibility of resulting in a confirmed and fully performed plan.)
Rental property cash flow
US Bank argues persuasively (dkt. 63, pp.6:28-7:21) that the debtor cannot overcome the presumption of a lack of good faith as to her intent to retain the rental property. That property apparently requires immediate and substantial repairs that she cannot afford.
As noted in the tentative ruling for the hearing on 5/29/18, the burden is on the debtor show that she believed in good faith, as of the petition date, that this case has a reasonable possibility of resulting in a confirmed and fully performed plan. That dovetails with the fact that, even if this Court were to
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grant the debtor's motion and further continue the automatic stay as against US Bank, the bank could file a motion for relief from the automatic stay under 11 U.S.C. 362(d)(2), and then the burden would be on the debtor (11 U.S.C. 362(g)) to show that the rental property is necessary to an effective reorganization (11 U.S.C. 362(d)(2)(B)).
But the debtor's own evidence appears to show that the rental property would not generate positive cash flow after taking into consideration (a) the interest that would have to be paid to US Bank, plus the ordinary and necessary expenses, or alterantively (b) the extraordinary expenses associated with urgent repairs at the property. This analysis appears to be so even supposing (i) that the contributions from the debtor's parents were dedicated solely to this property and (ii) that no such contributions would be made absent the debtor's retention of this property.
Negative cash flow even in absence of extraordinary repairs. The debtor's own projections show that, even with her parents' contributions, she will barely break even. US Bank argues persuasively that under current interest rates the debtor will lose money in any permissible treatment of its lien. Dkt. 63, p.7:10-21.
Extraordinary, expensive, and immediate repairs. The repairs at issue appear to be urgently needed, for health and safety reasons as well as to preserve the value of the collateral, according to the debtor's own evidence. The debtor's appraiser allocates $371,000 to remediate mold, water intrusion, and foundation issues. Dkt. 60 at PDF p.17:17-28 (appraiser's declaration), and dkt. 24, Ex.1, at PDF pp. 17 & 20-26 (appraisal, and contractor's bid).
This Court takes judicial notice that mold, water intrusion, and foundation issues can result in very substantial claims by tenants (mold infections, tripping hazards, etc.), and very substantial damage to collateral. Those issues tend to get worse if not remediated, so they require a large and immediate cash outlay, which the debtor cannot afford.
Title to the rental property
The tentative ruling is to reject US Bank's contention (dkt. 63, pp. 5:26- 6:27) that this Court lacks the jurisdiction or ability to value the property and determine the dollar amount of its secured claim due to the apparent shared title to the property. Nevertheless, that shared title means that the debtor is not entitled to 100% of the rent (absent clear and convincing evidence to the
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contrary). Therefore the negative value of the rental property is exacerbated. That is a further reason why the debtor has not shown (by clear and convincing evidence) that she has a reasonable expectation of positive cash flow from the rental property.
Income from wages, salary or commissions
The debtor's monthly operating reports do not appear to reflect non- rental income consistent with her projections. See MOR #1 (dkt. 49) and MOR #2 (dkt. 57). In addition, the debtor's numerous amendments to her bankruptcy Schedule I are all over the map and appear to be somewhat unreliable in terms of her projections, as US Bank points out (dkt. 63, p.4:18- 28). In addition, her latest bankruptcy Schedule I (dkt.51) goes back to failing to include the breakdown of rental income and expenses (dkt. 41), which makes the lastest figures even less clear and convincing.
Lack of documentation in prior bankruptcy case.
The debtor blames a bankruptcy petition preparer (dkt. 60), but as US Bank points out (dkt. 63, pp.3:25-4:2) that person is un-named. In addition, as US Bank points out (id.), the debtor is no stranger to bankruptcy, so when she received the notice that her papers were incomplete she should have known that they had to be supplemented. These circumstances reinforce the evidence (recited above) that this latest bankruptcy case is part of a pattern of cases filed to delay US Bank (and other creditors) rather than having been filed with a reasonable expectation of being able to make legitimate use of the bankruptcy system.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 5/29/18:
Appearances required. This Court has reviewed the motion papers (dkt. 12), the opposition papers (dkt. 20, 21) filed by U.S. Bank National Association as
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trustee, "Mr. Cooper" as servicer (collectively, "US Bank"), the debtor’s reply papers (dkt. 27), and other filed documents.
The tentative ruling is that (1) the debtor apparently seeks to continue the automatic stay of 11 U.S.C. 362(a) as to all property, not just the debtor’s real property; (2) the burden is on the debtor to show good faith in filing the current bankruptcy petition; (3) there is a presumption that the debtor did not file this case in good faith, which can only be rebutted by clear and convincing evidence; and (4) the debtor has not adequately rebutted that presumption on the present record; but (5) it is appropriate to provide the debtor with an opportunity to present supplemental evidence, which might be done in any of several ways. (a) This Court could hold an evidentiary hearing. That hearing would have to occur within the next day in order to come within the 30 day limit in 11 U.S.C. 362(c)(3)(B), unless US Bank is willing to waive that limit.
Alternatively, it might be appropriate for this Court to make findings of fact and conclusions of law without live testimony, on written declarations and briefs. (c) Alternatively, an adequate protection order ("APO") might be sufficient to establish good faith if the monthly payments are set at a sufficient dollar amount and other terms and conditions are applied.
Analysis:
Background
The debtor seeks an order continuing the automatic stay in this case pursuant to 11 U.S.C. 362(c)(3). The motion (dkt.12, p.3) only expressly references the real property and improvements at 9820 Brookshire Ave., Downey, CA 90240 (the "Downey Property"), although the debtor seeks to continue the stay as against all creditors (id., para. 1.e.) regardless whether they have liens against that property. In any event, the motion focuses on two creditors in particular (apparently the holders of deeds of trust against the Downey Property): (1) US Bank, and (2) Citimortgage (dkt. 12).
At the hearing the debtor is directed to clarify whether relief is sought as to all property of the estate. The tentative ruling is that any attempt to do otherwise would inappropriately discriminate among creditors.
For example, if the debtor seeks to stay acts against the Downey Property but not stay garnishment of wages, that might create a race to seize those wages. Such an unrestricted race to seize assets could be disruptive to the orderly restructuring of the debtor’s finances that is at the heart of the Bankruptcy Code’s attempt to treat creditors equally and maximize creditors’
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recoveries.
Accordingly, the tentative ruling is to interpret the ambiguous motion as a request to continue the automatic stay as against all property and creditors.
The automatic stay will terminate 30 days after the petition date unless this Court enters an order extending it.
On 1/26/18 the debtor filed a voluntary chapter 13 petition (2:18-bk- 10876-WB) (the "Prior Case"). The Prior Case was dismissed on 2/13/18 for failure to file case commencement documents (id., dkt. 11). Less than a year later, on 5/1/18, the debtor filed this chapter 11 case. Therefore, the automatic stay will terminate on 5/31/18 if this court does not extend the stay, pursuant to 11. U.S.C. 362(c)(3):
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1- year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707
–
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
on motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed. [Emphasis added.]
The parties have not briefed the legal standards applicable to 11
U.S.C. 362(c). First, there is authority that if the automatic stay is not continued beyond 30 days then it terminates in all aspects, i.e., not only as to the debtor individually but as to all parties and the bankruptcy estate. In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11-
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bk-53730-NB, docket #40 (Memorandum Decision).
Second, there is authority that "good faith" is a factual inquiry, although to the extent the statute defines what is good faith the interpretation of the statute is a legal question. See generally, e.g., In re Ellsworth, 455 B.R. 904, 914, 917 (9th Cir. BAP 2011) (holding that good and bad faith in other contexts are factual inquiries). Cf. U.S. Bank v. Village at Lakeridge, LLC, 138 S.Ct. 960, 583 U.S. (3/5/2018) (analyzing what issues are factual and what are legal).
Third, the factual nature of "good faith" does not necessarily mean that live testimony is required. See, e.g., In re Nicholson, 435 B.R. 622, 635-36 (9th Cir. BAP 2010). In fact, the tentative ruling is that, just like hearings on whether to grant relief from the automatic stay, any hearing on whether to continue the automatic stay is intended to be an expedited, summary proceeding, not a full blown trial. See 11 U.S.C. 362(c)(3)(B) (30 day limit to conclude hearing), and compare 11 U.S.C. 362(d)&(e) (30 day limit to conclude hearing) and In re Johnson, 756 F.2d 738, 740 (9th Cir. 1995) (summary nature of proceedings on whether to grant relief from stay); In re Veal, 450 B.R. 897, 914-15 (9th Cir. BAP 2011) (same, requiring only "colorable" basis for standing to seek relief from stay).
Fourth, the "good faith" inquiry is narrowly focused on the filing of the petition. For example, debtors sometimes argue that because they have a genuine desire to retain a roof over their and their family's heads they are acting in good faith, but the question is not the genuineness of that motive. The question is whether the debtor had a sufficient basis to believe that the current bankruptcy case could be properly prosecuted notwithstanding the dismissal of one or more earlier bankruptcy cases. In a reorganization case, such as this one, the tentative ruling is that the test of good faith is analogous to a standard test of whether relief from the automatic stay is appropriate: when the petition was filed, did the debtor have a good faith basis to believe that there would be "a reasonable possibility of a successful reorganization within a reasonable time." United Savings Assn. v. Timbers of Inwood Forest, 484 U.S. 365, 376 (1988) (interpreting 11 U.S.C. 362(d)(2)) (citation and internal quotation marks omitted), and see 11 U.S.C. 362(d)(3)(A) (similar test in small business cases).
Fifth, a finding of good faith for the preliminary purpose of whether to
continue the automatic stay under 11 U.S.C. 362(c)(3) is not necessarily determinative of good faith for any other purposes. See, e.g., 11 U.S.C. 1129
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(a)(3), and In re Abdelgadir, 455 B.R. 896, 900 (9th Cir. BAP 2011).
The tentative ruling is that this case presumptively was not filed in good faith, and that presumption is only rebuttable by clear and convincing evidence.
The statute provides, in relevant part:
… a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary) – as to all creditors, if –
…
a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to –
(aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney);
…
there has not been [x] a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or [y] any other reason to conclude that the later case will be concluded –
…
(bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed. [11
U.S.C. 362(c)(3)(C) (emphasis added)]
US Bank argues (dkt. 20, p.5:10-18) that two grounds exist to find that the case is presumptively not filed in good faith. First, under section 362(c)(3) (I)(aa), the Prior Case was dismissed after the debtor failed to file required case commencement documents (2:18-bk-10876-WB, dkt. 11). Second, under section 362(c)(3)(III)(bb), US Bank contends that the debtor has not shown a sufficient change in the debtor’s financial or personal affairs to conclude that the debtor will be able to propose a chapter 11 plan of reorganization will be confirmed and fully performed.
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The tentative ruling is that US Bank is correct on both grounds.
Therefore the burden is on the debtor to show, by "clear and convincing" evidence, that she has filed her latest bankruptcy petition in good faith (whether she has done so is the topic of part "(4)" of this tentative ruling – this part "(3)" only addresses the presumptions and burden of proof).
Failure to file case commencement documents in Prior Case. The debtor’s motion acknowledges that the Prior Case was dismissed because she failed to file bankruptcy schedules, her statement of financial affairs ("SOFA"), and a proposed chapter 13 plan, but the motion offers no explicit explanation for those failings (dkt. 12, PDF p. 11, para. 6). Instead, the debtor states that she was "unable to propose a feasible plan under a Chapter 13 bankruptcy because she was not able to afford the arrears over a five year period." (Id., PDF p. 6, paragraph F) (emphasis added). In other words, the debtor implies that her failure to file documents in her Prior Case was intentional, because she realized that it was not feasible for her to attempt to restructure her debts in chapter 13.
In her reply papers, the debtor states that she "filed [the] prior case … when a real estate agent referred her to a petition preparer, James Rivas (‘Rivas’) to file a bankruptcy for her. She paid $625 including filing fee and filed a chapter 13 … [but] she did not know that Rivas did not file all the schedules and [the] Prior Case was dismissed for failure to file her schedules" (dkt. 27, PDF p. 2, lines 9-14). That explanation does not appear to be credible because in the Prior Case the debtor herself was served, at her address of record, with this Court’s order directing her to file the missing documents (case no. 2:18-bk-10876-WB, dkt. 8).
The tentative ruling is that the debtor has not established a "substantial excuse" for failing to file her case commencement documents in the Prior Case. Therefore the presumption of lack of good faith applies, and it can only be rebutted by clear and convincing evidence.
Insufficient evidence of a substantial change in circumstances, or other reason to believe that this case will conclude in a confirmed and fully performed plan. The debtor’s declaration states that she has "taken steps to increase her income and cut her expenses" (dkt. 12, PDF p. 11, paragraphs 8-9). The debtor does not say what specific changes she has made with
respect to her non-rental income and expenses. As to rental income, she has
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now moved out of the Downey Property and is renting it to tenants, and she claims in the motion papers that this will generate an additional $3,500 in monthly income. The debtor’s amended bankruptcy Schedule I (dkt. 16, line 8.a.) increases this monthly rental income to $3,700.
(Note: This Court observes that the debtor’s original and amended bankruptcy Schedule I suffer from two defects. First, the instructions to line 8.a. clearly state that the debtor is supposed to list "net" income from rental property and attach a statement showing gross receipts, ordinary and necessary expenses, and net income.
Instead the debtor appears to have listed gross income in Schedule I, and expenses such as the mortgage, taxes, insurance, and maintenance in Schedule J.
Second, the debtor apparently is using amended bankruptcy Schedules I & J to reflect postpetition changes, which is wrong. Those schedules are supposed to reflect the facts as of the petition date.
The debtor should have filed a Declaration of Current/Postpetition Income and Expenses on local form F 3015.1.20.DEC.INCOME.EXPENSE. Nevertheless, these errors do not appear to have altered the math, so for present purposes this Court will disregard the debtor’s errors, with a direction to the debtor to correct these errors within seven days of the hearing date.)
As for the debtor’s reasons to believe that this case will result in a confirmed and fully performed plan, the debtor states that she intends to "cram down" US Bank’s first priority lien to $500,000 and amortize it over 30 years to reduce the monthly payment to US Bank to $2,684.11. (Id., PDF p. 5, paragraph 2.B. & C.). The motion does not specify the proposed interest rate or provide any evidence to support the $500,000 valuation.
Flaws in the debtor’s evidence of non-rental income: alternative reasons why there is a presumption of lack of good faith. US Bank argues (dkt. 20, pp.5:26-6:9) that (i) the debtor’s historical non-rental income is not fully disclosed (see SOFA, dkt. 1, at PDF p.35, item "4", listing only this year and omitting two previous calendar years); (ii) even limited to these few months, the SOFA reveals $600/mo. less non-rental income per month than the debtor has projected in her bankruptcy Schedule I, which calls into question the accuracy of that projection; (iii) her net non-rental income includes only $100/mo. for payment of State or Federal self-
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employment/withholding taxes (dkt. 26, at PDF p. 5) and there is evidence that the debtor has under-paid such taxes in the past (see dkt. 20, pp.5:28- 6:1); and therefore (iv) "Debtor’s figures are not currently supported and are likely to be negative not positive." The debtor’s reply papers (dkt. 27) fail to address these issues.
The tentative ruling that, in view of these deficiencies in the debtor’s evidence of non-rental income, the debtor has not adequately shown that, when she filed this case, she had sufficient basis for a good faith belief that this case is likely to result in a "confirmed plan that will be fully performed" within the meaning of 11 U.S.C. 362(c)(3)(C)(iii)(bb). It is true that, as described below, the debtor has provided evidence of increased rental income; but even with such rental income the debtor's cash flow is dependent upon sufficient non-rental income. Therefore, this is an alternative reason why there is a presumption that this case was not filed in good faith, which can only be rebutted by "clear and convincing" evidence.
Flaws in the debtor’s evidence of rental income appear to have been adequately addressed, for purposes of any presumptive lack of good faith. As for rental income and the debtor’s proposed retention of the Downey Property, US Bank argues (A) that the debtor would have to provide substantial "new value" to satisfy the "absolute priority rule" and thus be eligible to confirm a plan (dkt. 20, p.6:10-18, citing In re Zachary, 811 F.3d 1191 (9th Cir. 2016)), and (B) that even with an interest rate of 5.75% (i.e., only 1% above prime, notwithstanding the 100% loan-to-value ratio), the principal and interest payments would be $2,917.86 per month which, combined with $996.66 of property tax, insurance and maintenance (per the debtor’s bankruptcy Schdule J) would result in negative cash flow based on
$3,700/mo. in rental income. US Bank questions whether the debtor could obtain confirmation of any plan that would retain property with negative cash flow. Dkt. 20, p.7:3-9 (citing Loop Corp. v. United States Trustee, 379 F.3d 511, 515-16 (8th Cir. 2004) (negative cash flow sufficient to establish continuing loss to or diminution of estate for purposes of converting to chapter 7); In re Lindsay, 122 B.R. 157, 158 (Bankr. M.D. Fla. 1991) (denial of confirmation when debtors proposed to devote first 12 plan payments to non- income producing investment property)).
In her reply papers, the debtor provides evidence that in addition to renting out part of the Downey Property to one tenant for $3,500/mo. under a
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lease dated 2/15/18 (dkt. 27, Ex.3), she is about to rent out one bedroom and one bathroom to another tenant for $750/mo. under a lease dated 5/19/18 (id.), for a total of $4,250/mo. in rental income (see id., at Ex.1, Sch.I, line 8.a.). (Confusingly, the debtor’s pending cash collateral motion (dkt. 28, p.4, para. 3) lists her monthly rental income as $4,200, but the leases themselves call for total gross rents of $4,250/mo., so this Court will use the latter number.)
The debtor’s reply proposes to increase adequate protection payments to US Bank to $3,210/mo. (She also proposes to pay property taxes and property insurance directly rather than through escrow account(s) (dkt. 27, PDF p. 2:18-20), an issue on which this Court expresses no opinion at present.)
The tentative ruling is that this evidence of additional rental income adequately rebuts, for present purposes, US Bank’s evidence that the Downey Property is cash flow negative. True, the second lease was not actually entered into until after the petition, but the point is that as of the petition date it was reasonable for the debtor to believe that such a lease could be entered into, and therefore the debtor has established her good faith to the extent that the relied on such income in filing her bankruptcy petition on 5/1/18.
As for the confirmation issues, such as how much "new value" the debtor might be required to contribute, the tentative ruling is that such issues are premature. The issues are complex, and both US Bank and the debtor may have substantial arguments in their favor. See generally Procedures of Judge Bason, available at www.cacb.uscourts.gov (search for "new value" and "cramdown"). In other words, using the language of 11 U.S.C. 362(c)(3) (C)(iii), US Bank has not established that the debtor lacked a good faith "reason to conclude" that this case could result in a confirmed plan that can be fully performed.
That does not mean that the debtor has necessarily established that she filed her petition in good faith. The point is only that the Downey Property issues do not establish an alternative basis for a presumption against good faith. As noted above, however, that presumption is established on two alternative grounds – the debtor’s failure to file case commencement documents in the Prior Case, and the flaws in her evidence of non-rental income in this case. Therefore, the issue is whether the debtor has rebutted that presumption with clear and convincing evidence that she filed her petition
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in good faith.
Whether the debtor has rebutted the presumption of lack of good faith by "clear and convincing" evidence
The tentative ruling is that the debtor has not met her burden on the present record. But if this Court is persuaded to accept additional evidence then perhaps the debtor can establish, by clear and convincing evidence, that she filed her current bankruptcy petition in good faith.
Non-rental income. As noted above, the debtor has completely failed to address the flaws in her evidence of non-rental income. But for several reasons the debtor might be able to present sufficient evidence on that issue.
Assuming for the sake of discussion that the debtor’s non-rental income must be decreased to account for self-employment/withholding taxes, and for the vagueries of being an independent contractor, it is not clear on the present record how substantial those adjustments might be. Depending on the debtor’s testimony, historical records, and other evidence, she might be able to show by clear and convincing evidence that she had a good faith belief that no such adjustments would be necessary, or that they would be so minor that she could absorb them, and therefore that she filed her petition in good faith.
Rental income, and retaining the Downey Property. The second lease attached to the debtor’s reply appears to be "clear and convincing" evidence that, as of the petition date, the debtor had a reasonable basis to anticipate increasing her rental income, and to that extent a good faith basis to file her bankruptcy petition. Of course, that evidence was only presented with the reply, but the signature line on this lease is dated 5/19/18, so it could not have been presented earlier and the tentative ruling is to accept that evidence subject to providing US Bank with an opportunity to respond to it.
More generally, whether the Downey Property is cash flow negative, neutral, or positive depends in part on what amortizing payments the debtor must make to US Bank every month. Those amortizing payments depend, in turn, on the appropriate interest rate and collateral valuation.
US Bank’s opposition papers recognize that there is a colorable argument for an interest rate of 1% above prime, although of course that rate
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might or might not be what this Court would actually approve. The tentative ruling is that because a colorable argument can be made for such a rate, that is clear and convincing evidence that the debtor could file her petition in a good faith belief that such a rate might be approved. Therefore the more significant issue is valuation of the Downey Property.
The debtor’s motion and reply papers do not include any evidence in support of the $500,000 valuation used in her motion (dkt. 12, p.5).
Nevertheless, as the owner of the Downey Property she is competent to testify as to her opinion of its value, if this Court is persuaded to accept that additional evidence.
In addition, this Court notes that the debtor has filed a Motion For Order Determining Value of Collateral (dkt. 24), which contains an appraisal and a signed statement from an appraiser (not a declaration) that values the real property at $550,000. The point is not that this is admissible evidence in support of the present motion under section 362(c)(3) – it is not. Rather, the point is that, if this Court is persuaded to provide the debtor with an opportunity to present additional evidence, she may be able to offer clear and convincing evidence of her good faith in presuming that the Downy Property has a value in a range that could make a chapter 11 plan confirmable and feasible.
Conclusion
The tentative ruling is that there is a presumption that the debtor has not filed this case in good faith for two alternative reasons: first, she failed to file case commencement documents in her Prior Case without substantial excuse; and second, she has not presented enough evidence of a change in her non-rental income to believe in good faith, as of the petition date, that this case has a reasonable possibility of resulting in a confirmed and fully performed plan. The burden is on the debtor to rebut this presumption by clear and convincing evidence.
The debtor might be able to do so if this Court permits her to present additional evidence. The tentative ruling is to permit such evidence, subject to US Bank also being permitted to present rebuttal evidence. Such leeway appears to be warranted because of the considerable time pressure in bringing or opposing a motion under section 362(c)(3), as well as the complexity of the issues. Such evidence could be addressed in several ways.
Evidentiary hearing. This Court could set an evidentiary hearing.
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But because the hearing must be "completed" before the expiration of the 30- day period after the petition date (11 U.S.C. 362(c)(3)(B)) any such hearing would have to occur in the next day, unless US Bank is willing to waive the 30 day limit.
Declarations. Another alternative might be to make findings of fact and conclusions of law based on written declarations and briefs, without oral testimony. Given the expedited and summary nature of proceedings under 11 U.S.C. 362(c)(3), that might be appropriate.
APO. The debtor has expressed a willingness to enter into an APO (dkt. 27, p.2:23-25). If the dollar amount of monthly payments is sufficient, and if other terms and conditions are appropriate, that might be sufficient to show "good faith" under 11 U.S.C. 362(c)(3). As the saying goes, "the proof is in the pudding."
The parties are directed to address the foregoing issues at the hearing, including whether they will agree to an APO in resolution of this motion. Any such APO would be without prejudice to disputing all issues, including good faith, at any later stage of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron
Movant(s):
Karla Enid Ramirez Represented By Lionel E Giron
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Docket 7
Tentative Ruling for 8/14/18:
The tentative ruling is to convert this bankruptcy case to chapter 7. Appearances are not required. After the hearing this Court will prepare the conversion order.
Current issues.
Background. The debtor's status report notes (dkt. 62, p.2:9-12) that the debtor fell behind in mortgage payments and faced a scheduled increase in monthly payments from $2,500 to $7,800. That is an extremely unfortunate circumstance, but at this point it appears that there is no way to retain the property, and attempting to do so would simply mean that the debtor and her parents would be "throwing good money after bad." The best alternative may be for the debtor to obtain her chapter 7 discharge and the "fresh start" that is one of the main purposes of the bankruptcy system.
This Court recognizes that the debtor has attempted to save the property by moving out and renting it, as well as by obtaining contributions from her parents. Unfortunately, even if the debt is bifurcated as the debtor seeks to do, the property does not appear to be able to generate positive cash flow after payments on the mortgage. See tentative ruling for calendar no. 4 (denying motion to continue automatic stay). In addition, the property appears to have substantial deferred maintenance and other problems.
Despite the efforts of the debtor and her counsel, it does not appear possible to satisfy the requirements of the Bankruptcy Code to keep the property.
Denial of motion to continue automatic stay. As noted above, this Court's tentative ruling is to deny the debtor's motion to continue the automatic stay (see tentative ruling for calendar no. 4).
Budget motion (dkt. 17, 41, 46, 50, 56). This Court granted the debtor's budget on an interim basis (dkt. 46) and orally on a final basis at the hearing on 6/12/18, but no proposed final order was lodged. In addition,
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since that time the debtor has filed amended bankruptcy Schedules I&J (dkt. 56) which appear to amend the proposed budget. In addition, as set forth in the tentative ruling denying the debtor's motion to continue the automatic stay, it appears that even the latest proposed budget would need to be different, to account for greater adequate protection payments in view of increased interest rates and in view of the urgent need to stop the mold and water intrusion issues at the property from becomming worse (see tentative ruling for calendar no. 4). For all of these reasons, the tentative ruling is that, notwithstanding this Court's prior oral ruling, the budget motion cannot be approved on a final basis; but that issue appears to be moot because of the tentative ruling to convert this case to chapter 7.
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement: N/A.
Continued status conference: N/A.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Continue to 8/14/18 at 1:00 p.m. Appearances are not required on 7/10/18.
Current issues.
Budget motion (dkt. 17, 41, 46, 50, 56). This Court approved the debtor's budget on an interim basis (dkt. 46) and orally on a final basis at the hearing on 6/12/18, but no proposed final order was lodged, and since that time the debtor has filed amended bankruptcy Schedules I&J (dkt. 56). The tentative ruling is to deem the budget motion to be amended by those latest amended Schedules I&J and approve the budget as so amended on a final basis.
Proposed order: The debtors are directed to lodge a proposed order
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granting the motion via LOU, within 7 days after the hearing date, and a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Other issues. This Court has reviewed the debtor's filed Status Report (dkt. 54). This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: Continue to the date set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 17, 29, 41). Grant the budget motion on a final basis (i) as deemed amended by the latest bankruptcy Schedules I and J (dkt. 41) and (ii) subject to a requirement that, no later than 6/19/18, the debtor must file a declaration showing how it is reasonable to estimate self employment taxes of only $100 per month (see dkt. 41, Sch.J, line 16) or,
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alternatively, file a declaration establishing a higher dollar amount and lodge a proposed order amending the approved budget accordingly.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and include a provision that the budget is deemed amended by dkt. 41. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 7/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Amended Schedule I (dkt. 26). Bankruptcy Schedule I, paragraph 8a, requires a separate statement for any rental property showing gross receipts, ordinary and necessary expenses, and net income. The debtor has not complied. Why not?
Budget motion (dkt. 17, 29). Nothwithstanding the foregoing, this Court has reviewed the cash collateral motion (dkt. 28), which appears to set forth the gross receipts, expenses, and net income of the subject property.
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Based on the presumption that this is included in the budget for which the debtor seeks approval, the tentative ruling is to grant the budget motion as amended (dkt. 29), on an interim basis, subject to a final hearing at the same date and time as the continued status conference set froth below. By no later than 6/8/18, the debtor must (i) correct the above-referenced omission from bankruptcy Schedule I and the budget motion, (ii) provide notice of the final hearing on this motion via U.S. Mail to all parties in interest, and (iii) file a proof of service.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron
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Kevin Tang
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Docket 1
Tentative Ruling for 8/14/18:
Continue the status conferences in this case, the related Checkmate case (2:17-bk-22648-NB), and RS/Fower adversary proceeding (2:18-ap-01602- NB) as stated below. Appearances are not required on 8/14/18.
Current issues. This Court does not have any issues to raise sua sponte.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Amended Joint Plan/Amended Joint Disclosure Statement*: TBD at the continued status conference.
Continued status conference: 9/4/18 at 2:00 p.m., to be heard concurrently with Fresco's motions to convert the Sakurai and Checkmate cases to chapter 7. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18 (same as for 6/19/18):
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Appearances required. There is no tentative ruling, but the parties should be prepared to provide an update on the status of their negotiations, and whether all matters on calendar for today in the Sakurai and Checkmate cases (including the adversary proceeding against Fower and Radiology Solutions) should be continued to 8/7/18 at 2:00 pm., with a brief status report due 7/24/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 186, 187, 188). At the status conference this Court will address changes that need to be made to the amended disclosure statement and amended plan prior to service on creditors.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 186, 187): At the status conference this Court will discuss deadlines for filing an amended disclosure statement and plan, and whether to set hearing(s) on final approval of the disclosure statement and whether to approve the plan.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required by counsel for the debtors but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Joint Plan/ Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 176, 177, 178). At the status conference this Court will address numerous issues with these documents.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Joint Plan/Disclosure Statement* (dkt. 176, 177): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 48). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Fresco Adversary Proceeding (adv. case no. 2:17-ap-01558-NB), including motion to remand (adv. dkt. 8). The tentative ruling is that this matter will be mooted, assuming that this Court approves the parties' proposed settlement, and therefore this matter should go off calendar. The parties are reminded to file appropriate papers to have this matter dismissed once the settlement is fully implemented.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
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Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
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Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such
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delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to
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be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By
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Nicholas W Gebelt
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Docket 1
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 7/10/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 7/10/18 at 2:00 p.m.)
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/19/18 at 2:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement (dkt. 175, 176).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 177), appear to be identical to the documents filed in the related
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bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 186, 187, 188. Counsel are directed to alert this Court and the parties at the hearing if they are not.
For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/12/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 175, 176): At the status conference this Court will discuss appropriate deadlines.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required.
Current issues.
Joint Plan/Joint Disclosure Statement (dkt. 165, 166).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 167). are substantially identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 176, 177, 178. For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 5/8/18 at 2:00 p.m.).
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Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Joint Plan/Disclosure Statement* (dkt. 166, 167): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 57). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a
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later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
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Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
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(a) Status Report (dkt. 90): The status report states that the debtor's
business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash
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collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The
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following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
fr. 4/9/18, 4/10/18, 5/8/18, 6/12/18 ,6/19/18, 7/10/18
Docket 10
Tentative Ruling for 8/14/18:
Deny. Appearances are not required on 8/14/18.
Proposed order: Checkmate is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The tentative ruling is as follows: (1) deny the request for a temporary restraining order ("TRO") because the time for a TRO has passed, but such denial is without prejudice to Checkmate renewing its request for a TRO or filing a motion for a permanent injunction, and (2) deny the request for claim and delivery for lack of prosecution, but such denial is without prejudice to renewing the request if appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 4, 7/10/18 at 2:00 p.m.).
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Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 7, 6/19/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 7, 6/12/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the status conference in the Checkmate v. Radiology Solutions et al adversary proceeding (calendar no. 8, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 2:00 p.m. for the reasons stated on the record on 4/9/18. Appearances are not required on 4/10/18.
Tentative Ruling for 4/9/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether this court should grant Checkmate's request for an expedited hearing and issue an order granting a temporary restraining order and order the immediate turnover of the Collateral pursuant to Checkmate's claim and delivery action.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Represented By Vatche Chorbajian
George Tyler Fower Represented By Vatche Chorbajian
Siemens Medical Solutions USA Inc Represented By
Marsha A Houston
Movant(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
(2) Claim and Delivery; (3) Conversion; (4) Breach of Guaranty;
(5) Fraud; (6) Preliminary Injunction; and (7) Constructive Trust fr. 5/8/18, 6/12/18, 6/19/18, 7/10/18
Docket 1
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 7/10/18 (same as for 6/19/18):
Please see the tentative ruling for the Sakurai status conference (calendar no. 2, 7/10/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Appearances required.
Current Issues.
Joint Status Report and Notice of Continuances. This Court's 5/8/18 tentative ruling (see below) was not opposed, so it became this Court's actual ruling.
This Court directed (i) Checkmate to file and serve a notice of continuances attaching and incorporating by reference the deadlines in that tentative ruling by 5/7/18, and (ii) the parties to file a brief joint status report by 5/29/18. As of the preparation of this tentative ruling, none of the parties have complied. The parties are cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Motion for TRO & Claim and Delivery (adv. dkt. 10).
Plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") has filed a stipulation (adv. dkt. 30) with defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") for turnover of equipment. But Checkmate has not provided
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any evidence that it has relief from the automatic stay and consent of the Chapter 7 Trustee in the RS and Fower bankruptcy cases for such turnover (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA). The tentative ruling is to set a deadline of 6/19/18 for Checkmate to file a declaration attaching evidence sufficient to establish those things, and lodge a revised proposed order to approve the stipulation.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time. Continue to 7/17/18 at 2:00 p.m., brief joint status report due 7/3/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
The tentative ruling is to continue all pending matters in this adversary proceeding to 6/12/18 at 2:00 p.m. for the reason stated below, with a brief joint status report due 5/29/18, and with a deadline of 5/7/18 for the plaintiff to file and serve a notice of continuances attaching and incorporating by reference the deadlines in this tentative ruling (assuming that this Court is not persuaded to depart from this tentative ruling). Appearances are not required on 5/8/18.
Current Issues. This Court has reviewed the parties' status reports (adv. dkt. 24 & 26) and the other filed documents and records in this adversary proceeding.
Motion for TRO & Claim and Delivery (adv. dkt. 10). At the 4/9/18 hearing on this motion, counsel for plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") apprised this Court of the bankruptcy filings of defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA) and requested a continuance of
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this hearing to allow time to obtain orders granting relief from stay with annulment. In the Joint status report (adv. dkt. 24), Checkmate states that the hearings on the relief from stay motions are scheduled for 5/15/18.
Accordingly, the tentative ruling is to continue this motion to the date and time set forth at the start of this tentative ruling.
Siemens Motion to Dismiss (adv. dkt. 27, the "MTD"). Defendant Siemens Medical Solutions USA, Inc. ("Siemens") has properly self- calendared its MTD for 6/12/18 at 11:00 a.m. Siemens anticipates that it may be voluntarily dismissed by plaintiff (see adv. dkt. 24), but if that does not occur then this Court anticipates that the MTD may take 15 minutes or more to hear. This Court's practice is that matters anticipated to take 15 minutes or more are heard on the 2:00 p.m. calendar (not available for self-calendaring, except by permission of this Court). Therefore the tentative ruling is to re- calendar the MTD from 11:00 a.m. to 2:00 p.m., which is concurrent with the other matters in this adversary proceeding that are on today's calendar.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Represented By Vatche Chorbajian
George Tyler Fower Represented By
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Vatche Chorbajian
Siemens Medical Solutions USA Inc Represented By
Marsha A Houston
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
9:00 AM
William G. Hill as Respondent (and Leslie Richards as Responsible Professional)
fr. 6/7/18
Docket 41
Debtor(s):
Johnnie L. Fields Represented By Leslie Richards
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:00 AM
on principal residence [11 U.S.C. section 506(d)] with creditor Trinity Financial Services, LLC
fr. 6/28/18
Docket 19
Tentative Ruling for 8/17/18:
There is no tentative ruling. Trial will begin at 9:00 a.m. Appearances required.
This Court has reviewed the following pleadings in preparation for trial: (i) direct testimony of Trinity Financial Services, LLC's ("Trinity") appraiser (dkt. 30); (ii) direct testimony of Debtors' appraiser (dkt. 33); (iii) declaration of Debtors' attorney re: late filing (dkt. 34); (iv) responsive declaration of Trinity's appraiser (dkt. 38); (v) responsive declaration of Debtors' appraiser (dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/28/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Enrique Saldana Lomeli Represented By William G Cort
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
Docket 25
Tentative Ruling for 8/17/18:
Appearances required by debtor's counsel, Peter L. Nisson, Esq, and telephonic appearance required by debtor.
Background.
Denial of Reconsideration Motion. Debtor filed a voluntary chapter 13 case on 5/2/18. On 5/21/18, debtor's case was dismissed for failure to file to file case commencement documents (dkt. 12) ("Dismissal Order"). The debtor filed a motion for reconsideration of the Dismissal Order (dkt. 19) ("Reconsideration Motion"), which this Court denied (dkt. 24) ("Order Denying Reconsideration Motion").
Issuance of OSC. For the reasons stated in the Order Denying Reconsideration Motion, this Court separately issued an Order Directing Debtor and Her Attorney to Show Cause Why ... (2) This Court Should Not Impose Sanctions (dkt. 25) ("OSC"), based on an apparent abuse of the bankruptcy system. The OSC directed debtor and her bankruptcy attorney, Peter L. Nisson, Esq. ("Mr. Nisson") to appear at a hearing on 6/28/18. id.
On 6/25/18, Mr. Nisson filed a response to the OSC (dkt. 29) and debtor's declaration (dkt. 30).
Mr. Nisson failed to appear at hearing on OSC. Debtor and an "appearance counsel" appeared at the 6/25/18 hearing on the OSC ("Original Hearing on the OSC"); but Mr. Nisson failed to appear. As a result, this Court issued an order setting an evidentiary hearing on 7/20/18 regarding possible sanctions against Mr. Nisson (dkt. 31) ("Order Setting 7/20/18 Evidentiary Hearing"). That order provided that at the evidentiary hearing, this Court would consider whether to impose sanctions against Mr. Nisson for the reasons stated below:
for the reasons stated in the OSC, (b) for his failure to
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appear at the Original Hearing at the OSC or to inform this Court of his unavailability prior to the hearing, and (c) for repeatedly filing documents in this case that appear to have been improperly prepared, either by Mr. Nisson or by his staff without adequate supervision, including (i) the reconsideration motion (dkt. 19) that is referenced in the OSC, (ii) a proposed chapter 13 plan that improperly includes the debtor's typed
signature rather than a scanned signature (dkt. 16), and (iii) the debtor's belated declaration in response to the OSC, which was filed sideways and cuts off half of the document (dkt. 30).
Mr. Nisson provided insufficient explanations for his conduct at the 7/20/18 Evidentiary Hearing. At the 7/20/18 evidentiary hearing Mr. Nisson appeared on his own behalf; debtor did not appear. As set forth on the record, this Court made certain oral interlocutory rulings regarding Mr. Nisson's representations and the need for a further continued evidentiary hearing to address a number of issues concerning such representations and debtor's failure to appear. On 7/20/18, this Court issed an order setting a continued status conference for 8/30/18 and setting an 8/1/18 deadline for Mr. Nisson to file certain documents and telephone this Court's chambers with an available date for this Court to conduct the continued evidentiary hearing (dkt. 39) ("Scheduling Order").
On 7/31/18, Mr. Nisson filed a timely declaration (dkt. 43) ("Nisson Declaration") as required by the Scheduling Order and provided telephonic notice to chambers regarding debtor's and his availability for the continued evidentiary hearing.
On 8/1/18, this Court issued its order setting an evidentiary hearing for this date for Mr. Nisson to address the conduct described in the Order Setting 7/20/18 Evidentiary Hearing and copied above (dkt. 44) ("Order Setting 8/17/18 Evidentiary Hearing"). That order directed Mr. Nisson to appear in person (including for his testimony) and the debtor to appear and testify by telephone.
Current Issues. This Court has reviewed the Nisson Declaration and other relevant pleadings in this case. There is no tentative ruling, but Mr. Nisson and the debtor should be prepared to testify regarding the issues raised in this Court's OSC (dkt. 25), Order Setting 7/20/18 Evidentiary Hearing (dkt.
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31), Scheduling Order (dkt. 39), and Order Setting 8/17/18 Evidentiary Hearing (dkt. 44) and on the record at the 6/25/18 and 7/20/18 hearings.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/20/18:
Please see the tentative ruling for the order to show cause (7/20/18 at 10:00 AM, calendar no. 1).
Tentative Ruling for 6/28/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues identified in this Court's order to show cause (dkt. 25) and the related order deny debtor's reconsideration motion (dkt. 24).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Myrna Garcia Lorenzo Represented By Peter L Nisson
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
Not be Amended to Include a Bar to Refiling; and (2) This Court Should Not Impose Sanctions
fr. 6/28/18, 7/20/18
Docket 25
Tentative Ruling for 8/17/18:
Please see the tentative ruling for calendar no. 1 (8/17/18 2:00 p.m.).
Tentative Ruling for 7/20/18:
Appearances required by debtor's counsel, Peter L. Nisson, Esq, and telephonic appearance required by debtor.
There is no tentative ruling, but the parties should be prepared to address the issues identified in this Court's orders setting this evidentiary hearing regarding possible sanctions against Mr. Nisson (dkt. 24, 25, 31).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/28/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues identified in this Court's order to show cause (dkt. 25) and the related order deny debtor's reconsideration motion (dkt. 24).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Myrna Garcia Lorenzo Represented By Peter L Nisson
Trustee(s):
Kathy A Dockery (TR) Pro Se
3:00 PM
Docket 1
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
3:00 PM
(2) Allocate Proceeds Resulting from Approval, if Any, of the Motion for Order Approving Settlement Between Debtor and CKT Logistics, Inc., Fargo International, LLC, Fargo Transport, LLC, Fargo Trucking Logistic Co., LLC, Express FTC, Inc., Hancore Brokerage Services, Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019 Related to the Secured Creditors Liens
fr. 7/10/18, 8-7-18
Docket 122
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
8:30 AM
with Creditor DLJ Mortgage Capital Successor to BrooksAmerica Mortgage Serviced by Ditech
Docket 32
- NONE LISTED -
Debtor(s):
Alfredo Medina Represented By Julie J Villalobos
Joint Debtor(s):
Jen G Morales Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 26
Appearances required. The tentative ruling is (1) to overrule the evidentiary objection of Aspen G. Revocable Trust ("Aspen") regarding the amount owed to the first lienholder and (2) require appearances to address issues with valuation of the subject property, for the following reasons.
Overrule Aspen's evidentiary objection. Aspen asserts that debtor has again failed to meet her evidentiary burden in an attempt to establish the amount owed to the first lienholder. But on August 13, 2018, the first lienholder (Bayview) filed proof of claim no. 6 reflecting a secured claim of
$652,860.72 (which debtor attached as an exhibit to her supplemental declaration (dkt. 32)). A proof of claim executed and filed in accordance with Rule 3001 (Fed. R. Bankr. P.) constitutes prima facie evidence of the validity and amount of the claim and is deemed allowed under 11 USC 502(a) unless a party in interest objects. Therefore, the tentative ruling is to overrule Aspen's objection.
Valuation. There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
8:30 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Blanca Estela Rubalcava Represented By Kevin Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 43
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis B. Rosales Represented By Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 57
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The order should contain the following ruling:
The Motion is granted. The Clerk of the Bankruptcy Court is requested and directed to reopen this case. A trustee will not be appointed in this case absent further order from this court. Movant must timely file appropriate papers (i.e., the movant must follow up on the reason for reopening this case, such as filing and serving a motion, arranging for a hearing if appropriate, lodging proposed orders, etc.). If the movant fails to file those papers within 28 days after this order is issued, the Clerk of the Court is requested and directed to close this case without further notice.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kyung Soon Kim Represented By Michael H Yi
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 31
Appearances required. There is no tentative ruling, but the parties should be prepared to address (1) whether the debtor's supplemental declaration (dkt. 38) adequately addresses the concerns raised by the Chapter 13 Trustee (dkt. 33) and (2) whether adequate notice has been provided to all persons who assert an interest in the property, including both the disputed lienholder and the debtor's brother.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shirley Ann Rose Represented By Matthew D. Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 20
Continue to 9/27/18 at 8:30 a.m. to address the following issues. Appearances are not required on 8/30/18.
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
No later than 9/13/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees absent specific order. Counsel is prohibited from charging any fees on this matter (including all past, present and future work related to this claim objection) and is directed to return any fees that might be (or might have already been) awarded relative to this matter, unless this Court expressly states in a future adopted tentative ruling or written order that the cost/benefit analysis warrants charging fees.
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rita M Fiora Represented By
Bryan L Ngo
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Hrg re: Application of Attorney for Debtor for Allowance
of Fees and Expenses Following Dismissal or Conversion of Chapter 13 Case Subject to a Rights and Responsibilities Agreement
Docket 131
Grant in part and deny in part as set forth below. Appearances are not required.
Proposed order: The Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Service
Although the debtor purports (dkt. 136) to have served the Internal Revenue Service ("IRS") as directed by this Court's order (dkt. 135), it appears that the IRS was only served at two of the three required addresses. Nevertheless, the IRS has filed a response (dkt. 140) and has not objected to the form of service. Therefore it appears that service is no longer at issue.
Fee Application (dkt. 131)
Although the fee application could include more explanation, it appears that counsel is seeking a "no look" $2,500 for participation in the "LMM" (loan modification) program, plus post-dismissal approval of the presumptive fee in the RARA (in addition to supplemental amounts previously awarded). There has been no objection to the requested fees, so the tentative ruling is to grant the request for allowance of $9,495 in fees and $245.46 in costs, for a total award of $9,740.46, but deny counsel's request for an order directing payment of any unpaid balance of such fees out of funds held by the Chapter 13 Trustee ("Trustee") for the reasons stated below.
8:30 AM
Disposition of Funds in Chapter 13 Trustee's Possession (dkt. 132)
The Trustee filed a response (dkt. 132) to counsel's fee application seeking clarification and instruction from this Court regarding the appropriate disposition of $1,212.78 in funds currently in the Trustee's possession.
According to the Trustee, the IRS has requested turnover of those funds.
Procedure. The Trustee's request appears to be essentially an interpleader. The parties have not objected to this Court deciding about disposition of the remaining funds in the context of counsel's request for approval and payment of fees. Because of the small dollar amount at stake, it seems appropriate to resolve this issue at this time without requiring a formal interpleader adversary proceeding.
Jurisdiction. This Court has an independent duty to consider whether it has jurisdiction in this dismissed case. Given this Court's control over the sale (under the local rules, practice, and the order approving the sale), and given that the Trustee is currently holding funds generated from that sale, this Court concludes that it has subject-matter jurisdiction under 28
U.S.C. 157. See Beam v. I.R.S. (In re Beam), 192 F.3d 941 (9th Cir. 1999) (bankruptcy court had subject-matter jurisdiction to determine proper distribution of funds in trustee's possession following dismissal of chapter 13 bankruptcy case); In re Taylor, 884 F.2d 478, 481 (9th Cir. 1989) ("the bankruptcy court retains jurisdiction to interpret orders entered prior to dismissal of the underlying bankruptcy case, and to dispose of ancillary matters ") (internal citations omitted, emphasis in original); LBR 1017-2(f).
Applicable Law. If the IRS were not involved then any funds held by the Trustee would be returned to the debtor after payment of allowed administrative expenses. Section 1326(a)(2) states that "a payment made under this subsection shall be retained by the trustee until confirmation or denial of confirmation of a plan If a plan is not confirmed, the trustee shall
return any such payment to the debtor, after deducting any unpaid claim allowed under section 503(b) of this title." 11 U.S.C. 1326(a)(2) (emphasis added). "If a debtor proposes to fund a portion of his chapter 13 plan with the proceeds from the sale or refinancing of his residence, those proceeds may consistute 'payments' under section 1326(a)." In re Van Etten, 2007 WL 7541009, at *3 (9th Cir. BAP June, 19 2007).
But "in [Beam], the Ninth Circuit held that plan payments held by a chapter 13 trustee following dismissal of a case without a confirmed plan were subject to levy by the IRS. In so holding, the Ninth Circuit noted that
8:30 AM
section 1326(a)(2) conflicted with levying statutes contained in the Internal Revenue Code and held that 28 U.S.C. 6334 [] superseded section 1326(a) (2)." In re Van Etten, 2007 WL 7541009, at *4.
Here, the IRS states that "on July 17, 2018, after the case was dismissed and after the automatic stay terminated, the IRS sent a levy to the Trustee for the funds on hand." Dkt. 140, Tanner Decl. para. 8. Therefore, the tentative ruling is to direct the Trustee to disburse the held funds directly to the IRS.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Donnicus L Cook Represented By Vernon R Yancy
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Hrg re: Application of Attorney for Debtor for Allowance
of Fees and Expenses Following Dismissal or Conversion of Chapter 13 Case Subject to a Rights and Responsibilities Agreement
Docket 65
Appearances required. There is no tentative ruling, but the parties should be prepared to address this issues raised in the debtor's opposition (dkt. 72).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Manuel Palilio Domingo Represented By Kevin Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 04/05/18, 05/03/18, 06/07/18, 08/02/18
Docket 40
Debtor(s):
Felisa Dee Richards Represented By Eliza Ghanooni
Movant(s):
Felisa Dee Richards Represented By Eliza Ghanooni Eliza Ghanooni
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 20
Tentative Ruling for 8/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearings on 4/5/18 and 6/7/18 this Court continued the matter to allow the IRS time to evaluate debtor's proposals. What are the current positions of the parties?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 4/5/18 hearing, this court continued the matter for the debtor to file an amended chapter 13 plan. This court had previously continued the matter at the IRS' request for more time to evaluate the debtor's prior proposal. Debtor has since filed an amended plan (dkt. 33) and an amended Schedule J (dkt. 34). There is no tentative ruling, but the parties should be prepared to address where this matter stands and whether the IRS needs more time to evaluate debtor's latest proposal.
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/5/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/8/18 hearing, this court continued the matter at the IRS' request for more time to evaluate the debtor's proposal. There is no tentative ruling, but the parties should be prepared to address where this matter stands.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/8/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the motion, the opposition (dkt. 21) and the reply (dkt. 27).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Movant(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Jerson Estrada; Request Claim to be Disallowed fr. 6/28/18, 8/2/18
Docket 24
Tentative Ruling for 8/30/18:
Appearances required. There is no tentative ruling but the parties should be prepared to address the following issues.
This Court has reviewed the claim objection (dkt. 24), claimant's opposition (dkt. 35), and debtor's reply (dkt. 37). The claimant asserts (dkt. 35, p.4, n.1) that he "is also filing a motion from stay in order to have his claim adjudicated and liquidated in the State Court Litigation" and he claims that this bankruptcy case was filed "less than two months before the State Court Litigation's scheduled trial date." Dkt. 35, p.2:23-24. But, as of the preparation of this tentative ruling, no such motion for relief from the automatic stay has been filed.
The debtor asserts that this bankruptcy case was filed to protect the debtor from this litigation, but he does not cite authorities addressing whether claims litigation should be conducted in the Bankruptcy Court or in State Court. See, e.g., 28 U.S.C. 1334(c)(2) (mandatory abstention if non-core proceeding has been commenced, "and can be timely adjudicated," in a State forum of appropriate jurisdiction); 28 U.S.C. 1334(c)(1) (discretionary abstention); In re Tucson Estates, Inc., 912 F.2d 1162, 1166-67 (9th Cir.1990).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Tentative Ruling for 8/2/18:
Grant, with a caution that in future counsel for the debtor must include a cost/benefit analysis in connection with every claim objection. (In this instance that requirement is being excused because of the nature of the dispute at issue and because the proposed distributions (dkt. 29) appear to make the cost of this claim objection worth the attorney fees involved in prosecuting it; but in future this Court does not intend to do the analysis for the movant.) Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hossein Daneshvar Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
its Successors and Assigns as Assignee of GE Money Bank fr. 8/2/18
Docket 16
Tentative Ruling for 8/30/18:
Grant (disallow claim number 4 in its entirety). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Declaration of debtor's attorney re cost benefit analysis (dkt. 23).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/2/18:
Continue to 8/30/18 at 8:30 a.m. to address the following issues. Appearances are not required on 8/2/18.
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of
8:30 AM
preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%,
your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that the claim objection, if successful, would result in a benefit that exceeds the costs of counsel's fees. However, the debtor failed to include any analysis demonstrating that this is so. No later than 8/16/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection (so as not to further waste the time of this Bankruptcy Court, the claimant, and any other parties in interest in addressing this matter).
No fees absent specific order. Counsel is prohibited from charging any fees on this matter (including all past, present and future work related to this claim objection) and is directed to return any fees that might be (or might have already been) awarded relative to this matter, unless this Court expressly states in a future adopted tentative ruling or written order that the cost/benefit analysis warrants charging fees.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Geri Lynne Thomas Represented By
D Justin Harelik
8:30 AM
Movant(s):
Geri Lynne Thomas Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/2/18
Docket 18
Debtor(s):
Imo John Iboko Represented By Andrew Moher
Movant(s):
Imo John Iboko Represented By Andrew Moher
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 20
Tentative Ruling for 8/30/18:
Grant (disallow claim number 2 in its entirety), with the debtor's counsel being permitted to charge attorney fees and expenses (subject to the usual process for allowance and payment of counsel) for all services in connection with this claim objection except regarding the supplemental declaration (dkt. 37) because that should have been included in the claim objection. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Declaration of debtor's attorney re cost benefit analysis (dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/2/18:
Continue to 8/30/18 at 8:30 a.m. to address the following issues. Appearances are not required on 8/2/18.
Reasons:
8:30 AM
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
No later than 8/16/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees absent specific order. Counsel is prohibited from charging any fees on this matter (including all past, present and future work related to this claim objection) and is directed to return any fees that might be (or might have already been) awarded relative to this matter, unless this Court expressly states in a future adopted tentative ruling or written order that the cost/benefit analysis warrants charging fees.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Jose Lozano Represented By
D Justin Harelik
8:30 AM
Movant(s):
Juan Jose Lozano Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 22
Tentative Ruling for 8/30/18:
Grant (disallow claim number 3 in its entirety), with the debtor's counsel being permitted to charge attorney fees and expenses (subject to the usual process for allowance and payment of counsel) for all services in connection with this claim objection except regarding the supplemental declaration (dkt. 37) because that should have been included in the claim objection. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Declaration of debtor's attorney re cost benefit analysis (dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/2/18:
Continue to 8/30/18 at 8:30 a.m. to address the following issues. Appearances are not required on 8/2/18.
Reasons:
8:30 AM
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
No later than 8/16/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees absent specific order. Counsel is prohibited from charging any fees on this matter (including all past, present and future work related to this claim objection) and is directed to return any fees that might be (or might have already been) awarded relative to this matter, unless this Court expressly states in a future adopted tentative ruling or written order that the cost/benefit analysis warrants charging fees.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Jose Lozano Represented By
D Justin Harelik
8:30 AM
Movant(s):
Juan Jose Lozano Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/2/18
Docket 31
Tentative Ruling for 8/30/18:
Grant (disallow claim number 5 in its entirety), with the debtor's counsel being permitted to charge attorney fees and expenses (subject to the usual process for allowance and payment of counsel) for all services in connection with this claim objection except regarding the supplemental declaration (dkt. 37) because that should have been included in the claim objection. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Declaration of debtor's attorney re cost benefit analysis (dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/2/18:
Continue to 8/30/18 at 8:30 a.m. to address the following issues. Appearances are not required on 8/2/18.
8:30 AM
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
No later than 8/16/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees absent specific order. Counsel is prohibited from charging any fees on this matter (including all past, present and future work related to this claim objection) and is directed to return any fees that might be (or might have already been) awarded relative to this matter, unless this Court expressly states in a future adopted tentative ruling or written order that the cost/benefit analysis warrants charging fees.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Jose Lozano Represented By
8:30 AM
Movant(s):
D Justin Harelik
Juan Jose Lozano Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 44
- NONE LISTED -
Debtor(s):
Myrna Garcia Lorenzo Represented By Peter L Nisson
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
2:00 PM
Firm for Conflicts of Interest and Failure to Comply with Federal Rule of Bankruptcy Procedure 2019
Docket 276
Appearances required. There is no tentative ruling, but the parties should be prepared to address (1) any filed opposition (due 8/28/18 per this Court's order shortening time (dkt. 279, the "OST")), (2) this Court's jurisdiction and authority to rule on the motion to the extent that it seeks binding rulings on the Drivers, and (3) whether this Court has a sufficient legal and factual basis to approve or disapprove the terms of the Stipulation.
Key documents reviewed (in addition to the motion papers): the supplemental papers filed by the parties (dkt. 282-86) and the debtor's motion to disqualify the Slattery Law Firm and Hirsch Law Firm for conflicts of interest (dkt. 125, the "Disqualification Motion").
Background
The Drivers have a prepetition judgment based on which they assert over $8 million of claims against the debtor. The judgment is on appeal, although the automatic stay (11 U.S.C. 362(a)) presumably has stayed all such proceedings.
Most but not all of the Drivers (approximately 43 out of 54) assert judgment liens. The debtor apparently disputes the validity and/or extent of those liens such that the property subject to any such lien would be worth no more than about $4,500 in total (although conceivably there might be grounds to assert that the lien is worth much more - that issue has yet to be presented to this Court, and this Court makes no assumptions on it one way or the other).
Two firms have purported to represent many of the Drivers. The Hirsch Law Firm apparently represented most of the Drivers throughout much of the State Court Action and asserts that it currently represents all of the
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Drivers. The Slattery Law Firm apparently was involved in post-judgment representation and asserts that it is the proper representative of most of the Drivers.
The debtor filed the Disqualification Motion. The alleged conflicts of interest are: (a) that the two firms have made conflicting assertions as to which of them represents many of the same Drivers and (b) that the judgment liens asserted by various Drivers may create conflicts - allegedly non- waivable - among individual Drivers' security interests and between those who assert secured claims and those who do not.
At hearings on the Disqualification Motion, counsel for the debtor argued that the debtor has to know which law firm is representing any or all Drivers. That is important so that the debtor knows with or against whom it can negotiate or litigate a resolution of their disputes.
This Court's preliminary views, expressed at prior hearings, partially agreed with the debtor, partially disagreed, and acknowledged room for reasonable minds to disagree on some issues. Briefly, this Court was not persuaded that there were actual conflicts or disqualifying potential conflicts within classes of Drivers (secured, and unsecured). But this Court was tentatively persuaded that between those two classes there might be actual or potential conflicts, although any such actual or potential conflicts probably were waivable.
This Court was also tentatively persuaded that, because the issue of who represents litigants before this Court is so central to the bankruptcy process, this Court must have jurisdiction to address that issue. But this Court recognized that the expense and delay of litigating that issue would be detrimental to the progress of this case, so this Court ordered the parties to mediation. The Settlement Motion (dkt.276) seeks an order of this Court approving a stipulation (id., Ex. 1) to resolve the debtor's Disqualification Motion (dkt. 125).
Jurisdiction and authority to make rulings binding on Driver Creditors As noted above, this Court is tentatively persuaded that it has
jurisdiction to determine which law firm properly represents the Drivers. This Court also has jurisdiction to approve settlements by debtors in bankruptcy, if the appropriate standards are met. See Rule 9019 (Fed. R. Bankr. P.); In re A & C Properties, 784 F.2d 1377, 1381 (9th Cir. 1986). But the stipulation goes further than simply settling who represents the Drivers.
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Slattery fees
The stipulation approves a $175,000 payment to the Slattery Law Firm (para. 9, the "Slattery Fee Payment"). Many (perhaps all) of those fees were (allegedly) earned for nonbankruptcy work. How does this Court have jurisdiction and authority to approve or disapprove those fees?
In addition, the stipulation provides that the Slattery Fee Payment will be paid out of any distributions that otherwise would go to the Drivers, in a single lump-sum payment, without proration as to the Slattery Firm. Again, how does this Court have the jurisdiction and authority to grant a priority of distribution to the Slattery Firm?
Waiver of conflicts
Paragraphs 12 and 14 of the stipulation (dkt. 276, Ex.1) include various agreements by the parties to that stipulation regarding actual or potential conflicts. Many of those agreements appear to be innocuous. For example, they agree that secured claims are to be paid ahead of unsecured claims, which appears to be an innocuous recitation of the distribution scheme provided by the Bankruptcy Code and by nonbankruptcy law.
The parties also stipulate that any Driver who no longer wishes to be represented by the Hirsch Law Firm may terminate that representation at any time, but that "any potential or actual conflict of interest which is raised in or by the foregoing recitals and stipulated terms shall be deemed waived." Id., para. 14 (emphasis added). How does this Court have jurisdiction and authority to rule that any future assertion by a Driver of an actual or potential conflict has been deemed waived?
Legal and factual basis for approving the terms of the stipulation Supposing for the sake of discussion that this Court has the jurisdiction
and authority to approve the above-referenced terms of the stipulation, this Court is concerned that it apparently lacks a sufficient legal and factual basis to do so.
Slattery fees
Where is the retainer agreement with the Slattery Law Firm? Where is the citation to authorities establishing the legal standards for approving attorney fees "including but not limited to a quantum meruit basis" (paragraph 9 of the stipulation, dkt. 276, Ex.1, p.4)? Have the parties applied a "quantum meruit" rate of $1,000 per hour? Because the standard is "not limited" to quantum meruit, have the parties applied a 50% contingency rate? Whatever
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metrics the parties have used, are they reasonable?
More broadly, where is a description of the services performed, and evidence that they are worth $175,000 pursuant to the hourly rate, or contingency fee, or any other arrangment that the Slattery Law Firm may or may not have with the Drivers? Should this Court be reviewing timesheets?
As a procedural matter, can this Court approve any fees without providing an opportunity to the Drivers to review whatever supporting evidence might exist? Has there been sufficient disclosure to the Drivers of the proposed payment to the Slattery Law Firm, including its priority?
What is the basis for granting the Slattery Law Firm an absolute priority over the first $175,000 distributed to the Drivers? Is that consistent with whatever retainer agreement exists between that firm and the Drivers?
Waiver of conflicts
How is the purported "deemed" waiver of any actual or potential conflicts consistent with what is required by Rule 3-310(a) of the CA Rules of Professional Conduct? Is there any authority that this Court could dispense with the normal requirements for the informed written consent of each client after full written disclosure of the relevant circumstances and the reasonably foreseeable adverse consequences thereof?
Conclusion
This Court is well aware of the need to resolve who represents the Drivers, so that the larger issues in this case can move forward, including the scheduled mediation in the next few days of the more global issues. But this Court questions whether it can approve the stipulation as proposed.
Can the parties agree to dividing the stipulation into one that resolves the Disqualification Motion and is approved under the A&C Properties factors, and anther that governs the agreements between persons and issues that are not within the jurisdiction or authority of this Court? If such a divided arrangement is possible, is it appropriate?
The parties are directed to address the foregoing issues at the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 49
Debtor(s):
Jose Francisco Santos Represented By Sanaz S Bereliani
Movant(s):
Deutsche Bank National Trust Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 46
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3) in view of the relief already granted to the first lienholder.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Marilee Peterson Chappell Represented By Nicholas M Wajda
Movant(s):
Bank of the West Represented By Nicholas M Wajda Mary Ellmann Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF AMERICA, NA
vs DEBTOR
Docket 34
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Celia Lucia Velazquez Pro Se
Movant(s):
Bank Of America, N.A. Represented By
Gagan G Vaideeswaran Robert T Phifer
Essa Gye Asya Landa
Melissa A Vermillion Bonni S Mantovani
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 57
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jose Favela Jr Represented By Rebecca Tomilowitz
Joint Debtor(s):
Joyce Favela Represented By
Rebecca Tomilowitz
Movant(s):
Lakeview Loan Servicing, LLC Represented By Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF AMERICA, NA
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Tiffany Ringo Represented By William J Smyth
Movant(s):
BANK OF AMERICA, N.A. Represented By Merdaud Jafarnia Luisa M Amador Bonni S Mantovani Asya Landa
Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 111
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Michael Walker Kerr Represented By Thomas B Ure
Movant(s):
Wells Fargo Bank, N.A. as Trustee Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, NA
vs DEBTOR
Docket 28
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Gerald Paul Asher Represented By Julie J Villalobos
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
OCWEN LOAN SERVICING, LLC
vs DEBTOR
Docket 60
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jose Alberto Ramos Represented By Claudia C Osuna
Joint Debtor(s):
Vanessa Ramos Represented By Claudia C Osuna
Movant(s):
Ocwen Loan Servicing, LLC Represented By Seth Greenhill Keith Labell Theron S Covey Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 43
- NONE LISTED -
Debtor(s):
Victor H Muro Represented By
James Geoffrey Beirne
Joint Debtor(s):
Elizabeth Muro Represented By
James Geoffrey Beirne
Movant(s):
U.S. Bank National Association Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CALIFORNIA PLACE HOMEOWNERS ASSOC
vs DEBTOR
Docket 188
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
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exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at
www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is insufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Summer Joy Lake Represented By Veronica T Barton
Movant(s):
California Place Homeowners Represented By Lisa A Tashjian
Trustee(s):
Wesley H Avery (TR) Represented By David M Goodrich
Howard M Ehrenberg
10:00 AM
10:00 AM
BANK OF AMERICA, NA
vs DEBTOR
Docket 27
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jessica E Meza Represented By Peter L Lago
Movant(s):
Bank of America, N.A. Represented By
William F McDonald III Theron S Covey
James Edward McDaniel Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK NATIONAL ASSOC
vs DEBTOR
Docket 30
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Olivia Pino Represented By
James D. Hornbuckle
10:00 AM
Movant(s):
Wells Fargo Bank National Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FEDERAL HOME LOAN MORTGAGE CORP
vs DEBTOR
Docket 56
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Yvonne M Vargas Represented By Julie J Villalobos
Movant(s):
Federal Home Loan Mortgage Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 45
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Robert Noel Barr Represented By Thomas B Ure
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski Michelle Jones
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 33
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Deepak Sagar Represented By Madhu Kalra
Movant(s):
Bayview Loan Servicing, LLC., as Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
US BANK NATIONAL ASSOC
vs DEBTOR
Docket 60
- NONE LISTED -
Debtor(s):
Gerald Edward Young Represented By Erika Luna
Movant(s):
US Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST
vs DEBTOR
Docket 25
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2), and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
10:00 AM
exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at
www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carlos M Lara Pro Se
Movant(s):
Deutsche Bank National Trust, as Represented By
Merdaud Jafarnia
Trustee(s):
Carolyn A Dye (TR) Pro Se
10:00 AM
2nd CHANCE MORTGAGES, INC.
vs DEBTOR
Docket 19
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Miguel A Bustamante Represented By Stuart R Simone
Joint Debtor(s):
Rosa M Bustamante Represented By Stuart R Simone
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 16
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue,
10:00 AM
then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is insufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Andrew Green Pro Se
Movant(s):
BANK OF AMERICA, N.A. Represented By Kelsey X Luu
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF AMERICA, NA
vs DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue,
10:00 AM
then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is insufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Andrew Green Pro Se
Movant(s):
BANK OF AMERICA, N.A. Represented By Kelsey X Luu
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LONG BEACH CITY EMPLOYEES FEDERAL CREDIT UNION
vs DEBTOR
Docket 13
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 20, and the movant's reply, dkt. 21).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eugene Winters Represented By William G Cort
Movant(s):
Long Beach City Employees Federal Represented By
A. Lysa Simon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) the debtor's prior case (#9:17-bk-12010-DS) was dismissed (on 5/24/18) within one year before this case was filed (on 7/17/18), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to the debtor in personam and as to property of the debtor. See In re Hernandez & Jiminez, Case No. 2:11-bk-53730-NB, Dkt 40.
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
10:00 AM
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is insufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Roxanna Jeanneth Zamora Pro Se
Movant(s):
Deutsche Bank National Trust Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MILESTONME FINANCIAL, LLC
vs DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
SHAMINICIA T BUTLER Represented By Renee E Sanders
Movant(s):
Milestone Financial, LLC Represented By Harris L Cohen
Trustee(s):
Carolyn A Dye (TR) Pro Se
10:00 AM
BMW BANK OF NORTH AMERICA
vs DEBTOR
Docket 39
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Arturo Panganiban Maglinao Represented By Maria C Hehr
Joint Debtor(s):
Marilene Abad Maglinao Represented By Maria C Hehr
Movant(s):
BMW Bank of North America Represented By Marian Garza Cheryl A Skigin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
EXETER FINANCE, LLC
vs DEBTOR
Docket 40
- NONE LISTED -
Debtor(s):
Valerie Campbell Represented By Guy R Bayley
Movant(s):
Exeter Finance, LLC Represented By Cheryl A Skigin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 21
- NONE LISTED -
Debtor(s):
Jose Arevalo Represented By
Julie J Villalobos
Movant(s):
Pasadena Service Federal Credit Represented By
Bruce P. Needleman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SIENA LENDING GROUP, LLC
vs DEBTOR
Docket 205
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling (except to the extent, if any, of any changes at the hearing). See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers at dkt. 205-06): (i) The Forbes Company Response (dkt. 211), (ii) Official Committee of Unsecured Creditors Opposition (dkt. 212), (iii) GGP, Inc. and The Taubman Company, LLC Response (dkt. 214), (iv) Debtor's Response (dkt. 215), and the movant Siena Lending Group, LLC's reply (dkt. 217).
Analysis. Subject to the provisions set forth below, the tentative ruling is to terminate the automatic stay under 11 U.S.C. 362(d)(2) as to all collateral, except any claims that the debtor has standing to assert against Great American Group, LLC or Tiger Capital, LLC (the "Liquidation Consultants"). That limitation is without prejudice to any future request by movant Siena for relief from the automatic stay regarding any claims against the Litigation Consultants that constitute part of the collateral of the movant Siena. The tentative ruling is also to grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
Landlords issues - prior to termination of automatic stay. The tentative ruling is that any relief from the automatic stay (11 U.S.C. 362(a)) should be conditioned on the movant Siena first paying any outstanding postpetition lease obligations to the objecting landlords, through the earlier of
10:00 AM
the date when the premises have been surrendered to the applicable landlord or (b) the date on which the automatic stay is terminated. See dkt. 212, p.2:14 (asserting unpaid obligations of $41,130.03), and dkt. 214, p.3:6- 8 (preserving rights). As to any disputed amounts, the tentative ruling is that they must be paid into a blocked account to be held by the debtor (or as otherwise agreed between the landlords and the movant Siena) pending resolution of those disputes. (None of the foregoing should be interpreted as affecting any dispute that might exist between the movant Siena and any non- objecting landlord - that is an issue that is not presently before this Court.)
In setting forth the above condition this Court recognizes that the only issues for relief under 11 U.S.C. 362(d)(2) are whether there is any equity in the property and whether the property is necessary to an effective reorganization, as movant Siena argues. Dkt. 217, p.2:7-14. But the statute gives this Court discretion regarding what type of relief to grant - whether to terminate the stay, or condition it, or grant some other form of relief. The tentative ruling is that the conditions set forth herein are appropriate in the exercise of this Court's discretion.
Landlords issues - after termination of stay. The tentative ruling is that if the movant Siena wishes to remove or liquidate inventory prior to 9/14/18 then it may do so without interference from the landlords, provided that it pays ongoing rent on the same terms as currently exist, for the following reasons. Cf. dkt. 214, p.3:24-4:3 (landlord asserting that movant Siena has no right to occupy premises before (as well as after) deemed rejection on 9/14/18).
The reasoning is as follows: (a) until the lease is rejected the debtor continues to have a right to occupy the premises (subject to paying the rent),
terminating the automatic stay does not operate as a rejection of the lease or an ouster of the debtor - it merely permits the movant Siena to exercise its nonbankruptcy remedies, and (c) the debtor has obligations not only to unsecured creditors but also to the movant Siena, and those obligations require cooperation even after termination of the automatic stay, including not causing waste of the inventory and coordinating with the movant Siena regarding liquidation or removal of the inventory.
But if the movant Siena provides written notice to the landlord that it elects not to use the premises for liquidation or removal of inventory (and instead decides to abandon any remaining inventory) then this Court is not aware of any bankruptcy law, rule, or discretionary condition that should
10:00 AM
require the movant Siena to pay lease obligations after the later of (a) such notice or (b) termination of the automatic stay. Nor does the oral agreement of movant Siena to pay rent directly (rather than advance funds to the debtor to pay rent) create any obligation to continue paying rent. See Tr. 2/22/18 (dkt. 67) at pp. 37:11-40:3; dkt. 36 p.3:15-16. (This Court expresses no opinion about any nonbankruptcy law that might govern any rights and duties as between the landlords and the movant Siena.) Cf. dkt. 214, p.3:8-10 (landlord questioning whether movant Siena intends that termination of automatic stay should cut off obligation to pay lease obligations).
As for removal of fixtures (dkt. 211, p.2:19-27), the tentative ruling is to agree with the movant Siena that this issue should be left to nonbankruptcy law. Dkt. 217, p.6:1-6. This does not appear to be an issue that this Court should address, at least at this time, if ever.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
Siena Lending Group, LLC Represented By Leo D Plotkin
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 20
Debtor(s):
Fredy Gilman Bautista Represented By Jeffrey N Wishman
Movant(s):
Wells Fargo Bank, N.A. Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Andreas Baku Represented By Lindsey B Green
Movant(s):
Daimler Trust Represented By
Jennifer H Wang
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [UD] 6th VIRGIL, LLC
vs
DEBTOR
Docket 8
Debtor(s):
Duck Soon Lee Pro Se
Movant(s):
6th Virgil, LLC Represented By
Linda T Hollenbeck
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SUNG UM
vs DEBTOR
Docket 8
Grant in part and continue in part to 9/18/18 at 10:00 a.m. as set forth below. Appearances are not required on 9/4/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property (sometimes referred to in the leasehold context as the "original lessee(s)").
Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process
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generally). In this matter, such persons appear to include:Hyang Seo, Junh Hee Kim, Yongnam Lee or "Yong" Lee, Misoon Kim, Choi Taejin, Se Hyong, Hyang Seo, So Hee, Soon Choi, Da Sol Choi, and Da Wit Choi.
Option for shortened time: This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant (i) serving, on the day after the current hearing date, the motion papers and notice of the continued hearing date, and (ii) filing that notice and a proof of service no later than the next day. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hyang Seo Pro Se
Movant(s):
Lorraine Anderson Represented By Lorraine Anderson
Sung Um Represented By
Lorraine Anderson
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
4645 LIVE OAK LLC
vs DEBTOR
Docket 18
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. First, this case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
Second, and alternatively, the movant obtained a prepetition eviction judgment and writ of possession. See In re Perl, 811 F.3d 1120, 1127-28 (9th Cir. 2016) ("We conclude that under California law, entry of judgment and a writ of possession following unlawful detainer proceedings extinguishes all other legal and equitable possessory interests in the real property at issue.").
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2), and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
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Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Rodolfo Luna Pro Se
Movant(s):
4645 Live Oak LLC Represented By Helen G Long
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 10
Grant, subject to (1) any opposition (due 8/30/18) and (2) the following conditions. Appearances required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eduardo Alvarez Represented By William G Cort
Movant(s):
Eduardo Alvarez Represented By William G Cort
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 15
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodney Albert Gabriel Jr Represented By Julie J Villalobos
Movant(s):
Rodney Albert Gabriel Jr Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 11
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kathleen Elizabeth Watkins Represented By Gregory M Shanfeld
Movant(s):
Kathleen Elizabeth Watkins Represented By Gregory M Shanfeld
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MATIAN LAW FIRM, P.C.
vs DEBTOR
Docket 37
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay to the extent, if any, that is applies. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017):
If this order is duly recorded in compliance with applicable State laws governing the filing of interests or liens in any real or personal property of the debtor, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless
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otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Okorie C Okorocha Represented By Michael Poole
Movant(s):
Shawn Matian Represented By Daren M Schlecter
Matian Law Firm, P.C. Represented By Daren M Schlecter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
to Approve Stipulation Granting In Rem Relief from the Automatic Stay with Respect to Debtor's Real Property Commonly Known as 1126 Chantilly Road Los Angeles CA 90077
Docket 33
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Judith L. Tallarico Represented By Lewis R Landau
Movant(s):
Allstar Financial Services, Inc. Represented By Alan F Broidy
10:00 AM
PARAMOUNT RESIDENTIAL MORTGAGE GROUP
vs DEBTOR
Docket 57
Tentative Ruling for 9/4/18 (same as for 8/7/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 8/7/18, 6/12/18 and 5/8/18 hearings, this Court continued the matter at the parties' request for more time to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 5/8/18 hearing, this court continued the matter at the parties' request for more time to negotiate the terms of an adequate protection order. There
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is no tentative ruling, but the parties should be prepared to address the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 5/8/18 hearing, this court continued the matter at the parties' request for more time to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Viridiana Gutierrez Represented By William G Cort
Movant(s):
Paramount Residential Mortgage Represented By
Jason A Savlov Jason C Kolbe Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CITIMORTGAGE, INC.
vs DEBTOR
Docket 274
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
Movant(s):
CitiMortgage, Inc. Represented By Todd S Garan
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 42
Debtor(s):
Alfredo Herrera Holguin Represented By Jeffrey B Smith
Joint Debtor(s):
Diana Herrera Represented By Jeffrey B Smith
Movant(s):
PennyMac Loan Services, LLC Represented By
William F McDonald III Theron S Covey
Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 25
Debtor(s):
Daniel Lee Martinez Represented By Michael E Clark Barry E Borowitz
Movant(s):
U.S. Bank National Association, as Represented By
Tyneia Merritt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC Bank USA, N.A.
vs DEBTOR(S)
Docket 81
Debtor(s):
Santiago Corral Represented By Luis G Torres
Joint Debtor(s):
Annayelli Marquina Represented By Luis G Torres
Movant(s):
HSBC Bank USA, National Represented By Angie M Marth Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PACIFIC UNION FINANCIAL, LLC
vs DEBTOR
Docket 33
Debtor(s):
Anthony Edison Dawson Represented By Michael E Clark Barry E Borowitz
Movant(s):
Pacific Union Financial, LLC Represented By Brandye N Foreman Darlene C Vigil John D Schlotter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ROUNDPOINT MORTGAGE SERVICING CORP
vs DEBTOR
Docket 32
Tentative Ruling for 9/4/18:
Grant as provided in the tentative ruling for 8/14/18 (reproduced below), and for the additional reason that this this case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c). Although counsel for the debtor appeared at the hearing on 8/14/18 and suggested that this matter might be resolved through a loan modification and/or other procedures, the docket does not reflect any such resolution. In addition, although this Court orally directed counsel for the debtor to provide notice of this continued hearing, the docket does not reflect any such notice.
Appearances are not required.
Tentative Ruling for 8/14/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
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Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Max Roman Betancourt Represented By
James D. Hornbuckle
Movant(s):
RoundPoint Mortgage Servicing Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
REDIGER INVESTMENT MORTGAGE FUND, LLP
vs DEBTOR
Docket 38
Tentative Ruling for 9/4/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 7/10/18 hearing, this Court continued the matter at the debtor's request for more time to seek a refinancing or sale (see the debtor's response, dkt.
42). There is no tentative ruling, but the parties should be prepared to address the status of this matter.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether they will agree to a continuance for refinancing as requested by the debtor (see the debtor's response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Movant(s):
Rediger Investment Mortgage Fund Represented By
Misty A Perry Isaacson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE LLC
vs DEBTOR
Docket 31
Debtor(s):
Quiana Marcella Dunbar Represented By Kahlil J McAlpin
Movant(s):
Citibank, N.A., as Trustee for Represented By Kelsey X Luu Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICAN FINANCIAL SERVICES, INC.
vs DEBTOR
Docket 38
Debtor(s):
Leon J Barnes Represented By Scott Kosner
Movant(s):
Americredit Financial Services, Inc., Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
vs DEBTOR(S)
Docket 62
Tentative Ruling for 9/4/18:
Deny for lack of prosecution. At the hearing on 8/14/18 there were no appearances. Appearances are not required on 9/4/18. This Court will prepare the order, with a caution to counsel for the movant that unless appearances are excused or the motion is properly withdrawn, appearances are required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see Stipulation, dkt. 64).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edgar A Gonzalez Represented By
Rene Lopez De Arenosa Jr
Joint Debtor(s):
Maria F Gonzalez Represented By
Rene Lopez De Arenosa Jr
Movant(s):
Deutsche Bank Trust Company Represented By April Harriott
Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 39
Debtor(s):
Gilbert Alcantara Represented By Dina Farhat
Movant(s):
Nationstar Mortgage LLC as Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:17-01365 Naranjo v. Moisa et al
Docket 47
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Virginia Naranjo Represented By David R Chase
Defendant(s):
Rosa Moisa Pro Se
Edward Trevino Moisa Pro Se
Plaintiff(s):
Virginia Naranjo Represented By David R Chase
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:18-01212 Graner et al v. DeCoster et al
Docket 1
Appearances required. The court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 9/10/18 for the parties to lodge a proposed
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mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 6/22/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/27/18. Expert(s) - deadline for reports: 12/4/18
Expert(s) - discovery cutoff (if different from above): 12/11/18 Dispositive motions to be heard no later than: 12/18/18.
Joint Status Report: n/a
Continued status conference: 10/9/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Defendant(s):
Douglas Lawrance DeCoster Pro Se
Elsa Diane DeCoster Pro Se
Joint Debtor(s):
Elsa Diane DeCoster Represented By
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Charles J Brash
Plaintiff(s):
Kieran Graner Represented By Stephen B Goldberg
Sharon Graner Represented By Stephen B Goldberg
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
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Adv#: 2:18-01218 John R. Lobherr, Incorporated v. Chyun
of debt pursuant to 11 U.S.C. section 523(a)(2)(A); 2) For denial of discharge pursuant to 11 U.S.C. section 727(a)(2)(A); 3) For denial of discharge pursuant to 11 U.S.C. section 727(a)(4)(A); 4) For denial of discharge pursuant to 11
U.S.C. section 727(a)(5); and 5) For denial of discharge pursuant to 11 U.S.C. section 727(a)(8)
Docket 1
- NONE LISTED -
Debtor(s):
Sang Chyun Represented By
Donald E Iwuchuku
Defendant(s):
Sang Chyun Pro Se
Plaintiff(s):
John R. Lobherr, Incorporated Represented By Stephen P Reider Robert P Goe
Trustee(s):
Elissa Miller (TR) Pro Se
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Docket 30
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the opposition (dkt. 34) and reply (dkt.35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Daniel A Weston Represented By Stella A Havkin
Trustee(s):
Wesley H Avery (TR) Represented By Stella A Havkin
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Docket 28
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the opposition (dkt. 34) and reply (dkt.37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Daniel A Weston Represented By Stella A Havkin
Trustee(s):
Wesley H Avery (TR) Represented By Stella A Havkin
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Docket 12
Grant, as to both the debtors' residence and their personal property, for the reasons set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby incorporating it as a final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Creditor La Verne Village LLC's opposition papers (dkt. 16, 17, 18) and the debtors' reply (dkt. 24).
Reasons
Background
The debtors assert that the fair market value of their homestead at 924 Reed Drive, Claremont, California is $650,000 and that it is encumbered by liens and subject to a $175,000 homestead exemption aggregating just under
$645,000 (as of the petition date). They argued that the property should be abandoned because it is of "inconsequential" value and benefit to the estate (11 U.S.C. 554) or, put differently, it will not result in a "meaningful" distribution to general unsecured creditors. In re KVN Corp., 514 B.R. 1, 6-9 (9th Cir. BAP 2014) (quoting US Trustee handbook).
Creditor La Verne Village, LLC ("La Verne") argues that the abandonment motion is "moot and unnecessary" because La Verne made an offer to purchase the property for $680,000, with no real estate brokers involved, and that offer was accepted by the chapter 7 trustee. Dkt. 17, p.2:8. La Verne also argues that the debtor's valuation of $650,000 is not supported
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by any admissible evidence. La Verne alleges that its $680,000 purchase price will result in approximately $25,000 inuring to the benefit of the estate. Id. p.5:7-8.
The debtors reply that even if there were $25,000 in net proceeds to the estate, the Chapter 7 Trustee's commission alone would amount to
$28,500, thereby making the sale worthless to the estate. In addition, there would be fees for the Trustee's counsel and other administrative costs - i.e., to the extent those things are attributable to the sale, they would further reduce any net benefit to the estate.
(The debtors' motion also seeks abandonment of personal property, and as the debtors point out, no party in interest has objected to that portion of their motion.)
Analysis
This Court is not persuaded by La Verne's argument that the abandonment motion is moot and unnecessary in view of the Chapter 7 Trustee's agreement to sell the property to La Verne. Any agreement by a bankruptcy trustee to sell property is always subject to the other requirements of the Bankruptcy Code and Rules, including the debtors' ability to seek to compel abandonment and the requirement that any sale be approved or disapproved by the Bankruptcy Court, after notice and an opportunity for a hearing on any objections. See In re Mickey Thompson Entm’t Group, Inc.), 292 B.R. 415, 421 (B.A.P. 9th Cir. 2003). In other words, any agreement by the chapter 7 trustee has no binding or preclusive effect that would bar the debtors from prosecuting their motion to compel abandonment.
As for the merits of abandonment, the debtors have argued persuasively that there would be no net benefit at all to the bankruptcy estate, let alone a "meaningful" benefit to unsecured creditors. KVN Corp., 514 B.R.
1 . In these circumstances, it is appropriate to compel abandonment.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Mark Beckett Represented By Robert P Goe
Joint Debtor(s):
Shirin Beckett Represented By Robert P Goe
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
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Adv#: 2:17-01365 Naranjo v. Moisa et al
(2) Declaratory Relief
fr. 10/03/17, 11/17/17, 12/5/17, 4/17/18, 5/29/18, 7/10/18, 08/07/18
Docket 1
Tentative Ruling for 9/4/18:
Continue to 11/6/18 at 11:00 a.m., with the expectation that the status conference will go off calendar after entry of a judgment (see calendar no. 1, 9/4/18 at 11:00 a.m.). Appearances are not required on 9/4/18.
Tentative Ruling for 8/7/18:
Continue to 9/4/18 at 11:00 a.m. to be concurrent with the hearing on the motion for a default judgment. See dkt. 47-52. Appearances are not required on 8/7/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Continue to 8/7/18 at 11:00 a.m. (no written status report required). Plaintiff is encouraged to file and serve a motion for a default judgment (the "Default Judgment Motion") for the same date and time.
Reasons: Plaintiff has obtained Clerk's defaults (dkt. 43, 44) on the amended complaint (dkt. 37) against the defendants Rosa Moisa and Edward Trevino
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Moisa. The tentative ruling is that any Default Judgment Motion must include the following.
Evidence. The Default Judgment Motion must be supported by a declaration showing evidence to support the assertion that the property description in the prayer for relief (dkt. 37 at PDF pp. 8:21-9:6) is correct (and the existing property descriptions are wrong (see dkt. 37, p.2 at para.3&5 & Ex.A&B at PDF pp. 12&15). For example, it appears that an authenticated copy of the recorded grant deed by which the defendant(s) acquired her (or their) interest(s) in the property might show the correct property description.
Service. Pursuant to Rule 55(b)(2) (Fed. R. Civ. P., incorporated by Rule 7055, Fed. R. Bankr. P.), the tentative ruling is that any Default Judgment Motion must be served only on Mr. Edward Trevino Moisa, not on the (deceased) defendant Ms. Rosa Moisa.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Grant the motion for an order allowing service of process via publication (dkt. 27), as supplemented (dkt. 34), for the reasons stated at the hearing on 12/5/17 (see dkt. 33). Continue the status conference in this adversary proceeding to 5/29/18 at 11:00 a.m. (no written status report required).
Appearances are not required on 4/17/18.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The tentative rulings are as follows.
No relief against unnamed defendants. At the initial status conference on 10/13/17, and in the tentative ruling for that status conference (reproduced below), this court questioned how quiet title relief could be granted against persons who are not named as defendants. The motion for a default judgment does not address that issue, and yet it seeks to quiet title as against all persons, whether or not they are named as defendants. The tentative ruling is to deny that relief.
No relief against decedent whose estate has not been properly served. In addition, the plaintiff appears to be seeking a default judgment against a decedent, Ms. Rosa Moisa, without having served anyone who could properly accept service for the decedent. In fact, in preparing for this hearing this court noticed that the plaintiff had the complaint served on herself as administrator of Mr. Moisa's esate (see adv. dkt. 5 at PDF p.4). How is that proper?
To make matters worse, it appears that she is not actually the administrator: she declares that she is currently seeking to be appointed as the administrator of the decedent's estate. See adv. dkt. 21, Plaintiff Decl., p.4, para. 14.
How could counsel for the debtor seek a default judgment on this foundation?
No relief against persons with whom there is no actual case or controversy. The plaintiff also seeks relief against Mr. Edward Trevino Moisa (the son of the decedent Ms. Moisa). The plaintiff alleges that there is an actual case or controversy involving him (and Ms. Moisa), but the plaintiff also alleges that after his mother transferred the property to Mr. Moisa he voluntarily transferred the subject property to the plaintiff via grant deed (dkt. 21, Plaintiff Decl., p.2, para. 5-6), and that Mr. Moisa "takes no position" and has not responded to the complaint (id. p.5:3). How is there an actual case or
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controversy involving Mr. Moisa (or his mother)?
Possible real party in interest? It is unclear from the filed papers, but the party against whom the plaintiff might really be seeking relief is the county of Los Angeles. She alleges that when she attempted to refinance the property "the Title Company for the future Lender noticed the discrepancy in the Grant Deeds (regarding Legal Description), that LA County changed the designation back to Rosa Moisa as the current owner." Id., p.4, para. 13 (emphasis added.) But it is not clear what this means - did LA County commit an error in indexing? Did it improperly alter the text of some grant deed? Or did LA County allegedly do something else to "change the designation" in some document or record?
Nor does the plaintiff point to any document that reflects any such confusion. It is not this court's role to scour the record to try to figure out what the plaintiff means.
Conclusion. This court is very empathetic to the plaintiff (the debtor), who alleges that she purchased the property when it had no equity, and made payments to save the property from foreclosure, and yet, although she has obtained this court's approval to refinance the property, she has been unable to do so because of some sort of discrepancy in the real estate records regarding her title to the property. But the papers filed by the debtor's counsel fail to explain the actual issue, and in any event appear to be wholly inadequate to address whatever the issue might be.
In addition, this court is very troubled that the filed papers appear to violate basic legal principles and ethical obligations. It appears that counsel for the debtor has sought a default judgment based on (i) the plaintiff/debtor serving herself, (ii) as the purported administrator of the estate of a decedent/defendant, even though she has not yet been appointed in that role, and (iii) with whom there does not appear to have been any actual case or controversy. This appears to be an attempted fraud on the court, intended to obtain a default judgment in the hope of binding other persons who have not been named as defendants.
Is there any reason why this court should not issue an order to show cause why sanctions should not be imposed? Meanwhile, what can be done to address whatever is the actual issue that is holding up the debtor's refinance of her real property?
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Continue to 12/5/17 at 11:00 a.m. to heard concurrently with the motion for a default judgment. Appearances are not required on 11/7/17.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 10/3/17:
Appearances required.
There is no tentative ruling, but the plaintiff should be prepared to address the exact nature of the relief sought, and how this court can grant relief as against persons who are not named as defendants.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Virginia Naranjo Represented By David R Chase
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Defendant(s):
Rosa Moisa Pro Se
Edward Trevino Moisa Pro Se
Plaintiff(s):
Virginia Naranjo Represented By David R Chase
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 1
- NONE LISTED -
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
1:00 PM
Docket 1
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Failure to serve order. This Court's status conference order (dkt. 9, para.5, bolded text) directed counsel for the debtor to serve all creditors with a copy of the order. Why was it not served?
Failure to comply with requirements for professionals. The debtor's status report (dkt. 45, p.4) states that neither the debtor's attorney nor any other professional intend to apply for employment because they do not intend to seek compensation during the case. That is not the test. They are required to apply for employment under 11 U.S.C. 327. In addition, the United States Trustee ("UST") has objected in its motion to dismiss (dkt. 39) that the person who claims to be acting as the debtor's bankruptcy attorney, Robert A. Brown, Esq., is also the debtor's CEO and General Counsel. The parties should be prepared to address the conflicts issues.
Failure to comply with Chapter 11 requirements. See the UST's motion to dismiss (dkt. 39).
Failure to comply with procedures for plan (dkt. 38) and disclosure statement (dkt. 37). As stated in this Court's status conferences order (dkt. 9), Judge Bason's posted procedures (available at www.cacb.uscourts.gov) establish procedures for any draft plan and disclosure statement. Counsel for the debtor has violated those procedures by mailing a copy of the drafts to creditors before this Court has approved such mailing.
In addition, those documents omit any meaningful liquidation analysis or disclosure of what could be paid to general unsecured creditors, instead opting for a flat 12% promised distribution (dkt. 38, at PDF pp.13-14). In addition, from the summary of assets and liabilities (dkt. 19) it appears that the debtor might have enough equity in property to pay far more than12%, depending on the total amount of unsecured claims.
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Opaque "disclosures". The debtor's references to a sale of the
"Marsh" property is not adequately explained. In addition, although the debtor's bankruptcy Schedule H (dkt. 1) asserts that there are no co-debtors, this Court questions whether that is so because business organizations typically have individual guarantors on any major debts.
Deadlines/dates. This case was filed on 7/30/18.
Bar date: 11/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement: TBD.
Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Acquiplied Assets, B.T. Represented By Robert A Brown
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Docket 2
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Failure to serve order. This Court's status conference order (dkt. 2, para.5, bolded text) directed counsel for the debtor to serve all creditors with a copy of the order. Why was it not served?
Failure to file status report. This Court's status conference order also directed the debtor to file a status report. None has been filed.
Failure to comply with Chapter 11 requirements. See the UST's motion to dismiss or convert (dkt. 12).
Deadlines/dates. This case was filed on 7/30/18.
Bar date: 11/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 10/9/18 at 1:00 p.m. Status Report due 9/25/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Harry Hildibrand LLC Represented By James P Lezie
1:00 PM
Docket 14
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 8/2/18.
Bar date: 11/9/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 12/23/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
1:00 PM
Docket 30
Tentative Ruling for 9/4/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 5/29/18 and converted from chapter 13 on 8/8/18.
Bar date: 11/9/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 12/23/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Grant application for hearing on shortened time (see evidence of service, dkt. 31, 33). There is no tentative ruling on the motion to vacate dismissal of this
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chapter 13 case with a 180-day bar, so as to permit the debtor to pursue chapter 11 relief either in this case or by filing a new case. The parties should be prepared to address any opposition at the hearing. See Order Shortening Time (dkt. 28). Appearances required.
Key documents reviewed (in addition to motion papers): Application for order shortening time (dkt. 26) and evidence of service (dkt. 31, 33).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
Movant(s):
Nandini Mariwala Savin Represented By Alla Tenina
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
Docket 185
- NONE LISTED -
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
1:00 PM
Tsuneo Hisanaga to Convert Case From Chapter 11 to Chapter 7
Docket 199
- NONE LISTED -
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
1:00 PM
Docket 197
- NONE LISTED -
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
1:00 PM
Docket 544
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel
1:00 PM
Docket 490
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel
1:00 PM
Docket 1
Please see the tentative ruling for the status conference (calendar no. 11, 9/4/18 at 1:00 p.m.).
Debtor(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
Movant(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
1:00 PM
Docket 6
Tentative Ruling for 9/4/18:
Appearances required.
Proposed order: If this Court is persuaded to adopt the following tentative ruling - i.e. to approve the Amended Disclosure Statement on a final basis and confirm the debtor's Amended Plan - then the debtor is directed to lodge via LOU, within 7 days after the hearing date, (1) a proposed order approving the Amended Disclosure Statement and (2) a proposed order confirming the Amended Plan, and attach to the latter proposed order a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b) (1)(B).
Current issues. This Court has reviewed the debtor's Amended Disclosure Statement (dkt. 61), Amended Plan (dkt. 62), Ballot Summary (dkt. 69), and other relevant pleadings.
Debtor's Amended Plan requires cramdown pursuant to 1129(b). The debtor's amended plan identifies three impaired classes: 2A, 2B, and 4A. To avoid cramdown, all three classes must vote to accept the plan (11 U.S.C. 1129(a)(8)). Based on a review of the debtor's Ballot Summary (dkt. 69), the votes were as follows:
Classes that voted to accepted the AmPl: 2B, 4A
Classes that voted to reject the AmPl: n/a
Classes that did not vote and are deemed to reject the
AmPl: 2A
Therefore, the debtor's plan can only be confirmed if it satisfies the cramdown requirements of 1129(b) as to Class 2A.
The Amended Plan is "fair and equitable" and does not "unfairly discriminate" with respect to Class 2A. Section 1129(b)(1) states, in relevant part "…if all of the applicable requirements of subsection (a) of this section
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other than paragraph (8) [acceptance by every impaired, voting class] are met with respect to a plan, the court, on request of the proponent of the plan, shall confirm the plan notwithstanding the requirements of such paragraph if the plan does not discriminate unfairly, and is fair and equitable, with respect to each class of claims or interests that is impaired under, and has not accepted, the plan." (Emphasis added.)
Secured Creditor Class 2A. First, the debtor appropriately classified Planet Home Lending, Inc.'s ("PLH") first priority secured claim into its own category and has not otherwise discriminated unfairly with respect to Class 2A. Second, the debtor proposes to pay PLH 100% of its claim for a period of 180 months with 3% apr. PLH has not objected to the interest rate on the basis that it does not provide present value and PLH will retain its lien and receive deferred cash payments. Therefore, the amended plan satisifies 11 U.S.C. 1129(b)(2)(A)(i)(I) and (II). In addition, PLH will receive payment in full, so the absolute priority rule (11 U.S.C. 1129(b)(2)(B)(ii)) is satisfied with respect to this class. Finally, in all other respects the amended plan appears to be fair and equitable with respect to Class 2A. Therefore, the amended plan satsfies the requirements for cramdown with respect to Class 2A.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 24, 29).
AmPlan/AmDisclosure Statement (dkt. 61, 62)*: The tentative ruling is to approve the amended disclosure statement on a final basis and confirm debtor's amended plan pursuant to 1129(b).
Post-Confirmation status conference: 11/27/18 at 1:00 p.m. Brief
written post-confirmation status report due 11/13/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 7/10/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Court has reviewed the debtor's status report (dkt. 54) and other relevant pleadings.
Plan/Disclosure Statement (dkt. 51, 52). It appears that the differences between the stipulation with JP Morgan Chase Bank, NA (dkt. 55, 58) and the proposed plan (dkt. 52, Ex.A, Class 2B) are immaterial (a very minor increase in the claim amount and monthly amortizing payment amount). This court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 24, 29).
Plan/Disclosure Statement (dkt. 51, 52)*: 7/17/18 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 9/4/18 at 1:00 p.m. (no written Status Report required).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances
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are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash Collateral Motion (dkt. 12). The tentative ruling is to grant the motion on a final basis and authorize the use of cash collateral as modified by the amended budget (dkt. 35).
Budget Motion (dkt 13). The tentative ruling is to grant the motion on a final basis as modified by the amended budget (dkt. 35) (see also dkt. 18, 21, 22, 28).
Proposed Orders. The debtor is directed to serve and lodge proposed orders on the foregoing motions via this court's "LOU" system within 7 days after the hearing date.
Status Report. This Court's prior tentative ruling set a deadline of 4/17/18 to file a brief status report. As of the preparation of this tentative ruling, the debtor has not filed a status report. Why not?
Untimely Filings.
This Court directed the debtor to serve Chase with the Budget Motion and Cash Collateral Motion by 3/22/18, but the Debtor's proof of service reflects service on 3/23/18.
This Court also directed the debtor to file a supplemental declaration in support of the Budget Motion by 3/30/18, but the Debtor did not file her declaration until 4/5/18.
The debtor's counsel is cautioned that continued failure to abide by the deadlines this court sets may result in adverse consequences.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (timely served dkt. 24, 29).
Plan/Disclosure Statement*: file by 6/12/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when
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deadline(s) for such objections are established).
Continued status conference: 7/10/18 at 1:00 p.m., brief status report due 6/26/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor and by the debtor herself.
Current issues.
Cash Collateral Motion (dkt. 12). See the separate tentative ruling for that motion (calendar no. 4, 3/20/18 at 1:00 p.m.).
Budget Motion (dkt 13).
Service is inadequate. The proof of service (dkt. 13, pp. 5-6) fails to comply with the rules for service. Chase was not served via certified mail or to the attention of an officer as required by Rule 7004(b)(3) & (h) (Fed.
R. Bankr. P.) (incorporated by Rule 9014(b), Fed. R. Bankr. P.).
Unexplained Inconsistencies between Schedule J & Proposed Budget. The debtor should be prepared to address the issues raised in the United States Trustee's opposition (dkt.18).
Notice of continued hearings. If the court grants the budget and cash collateral motions on an interim basis, the tentative is to set a deadline of 4/3/18 for the debtor to file and serve a notice of the final hearing on both motions, and to set the same date for the debtor to file any supplement or amendments to such motions, with deadlines of 4/10/18 for any opposition and 4/17/18 for any reply.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 5/25/18 (DO NOT SERVE notice yet - court will prepare
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an order after the status conference).
Plan/Disclosure Statement*: file by 6/12/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/1/18 at 1:00 p.m. (to be concurrent with the hearings on cash collateral and budget motions), brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
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fr. 03/03/15, 03/31/15, 04/28/15, 05/26/15, 06/09/15, 07/07/15, 07/28/15, 09/01/15, 09/22/15, 11/17/15, 12/15/15,
01/19/16, 02/23/16, 03/22/16, 05/31/16, 07/19/16, 09/27/16,
11/29/16, 01/10/17, 04/25/17, 06/20/17, 10/17/17, 01/30/18,
04/10/18, 05/08/18, 06/07/18, 07/10/18, 08/07/18
Docket 9
Tentative Ruling for 9/4/18:
Continue to 10/9/18 at 1:00 p.m., with a brief status report due by 9/25/18. Appearances are not required on 9/4/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 329) and Status Report (dkt. 330). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue to 9/4/18 at 1:00 p.m., with a brief status report due by 8/21/18. Appearances are not required on 8/7/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 325) and Status Report (dkt. 326). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Continue to 8/7/18 at 1:00 p.m. Appearances are not required on 7/10/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 322) and Status Report (dkt. 324). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Continue to 7/10/18 at 1:00 p.m. Appearances are not required on 6/7/18.
This Court has reviewed the debtor's latest filed documents regarding its cash flow and sale of property (dkt. 316, 317, 319, 320). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/8/18:
Continue to 6/7/18 at 1:00 p.m. Appearances are not required on 5/8/18.
This Court has reviewed the debtor's status report (dkt. 313), notice of pending sale for the Broadway property (dkt. 314), and latest monthly operating report (dkt. 312). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 1:00 p.m. Appearances are not required on 4/10/18.
This court has reviewed the debtor's status report (dkt. 311) and monthly operating reports (dkt. 309, 310), and this court is not aware of other issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's status report (dkt. 304) and the notice
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(dkt. 307) filed by Bayview Loan Servicing, LLC ("Bayview"). The parties should be prepared to address the issues raised by those papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's post-confirmation status report (dkt. 298) and has no issues to raise sua sponte at this time. The tentative ruling is to continue this status conference to 1/30/18 at 1:00 p.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 10/17/17 at 1:00 p.m. in view of the debtors' status report (dkt. 292). Appearances are not required on 6/20/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/25/17:
Continue to 6/20/17 at 2:00 p.m., to provide the debtors with time to seek entry of a final decree in this case, or such other remedies as may be necessary or appropriate, in view of the confirmed Joint Chapter 11 Plan (dkt. 270) and the unopposed motions to approve the compromise with Butler
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Capital (dkt. 277-80). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
[PRE-CONFIRMATION TENTATIVE RULINGS OMITTED]
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
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Docket 7
Tentative Ruling for 9/4/18:
Appearances required.
Current issues. This Court has reviewed the debtor's draft plan (dkt. 47) and disclosure statement (dkt. 46) and this Court has no issues to raise sua sponte. Has the debtor had any negotiations with secured creditors? Is it more appropriate to allow additional time for such negotiations, or to authorize the debtor to mail a voting package to all parties in interest and set a combined hearing on final approval of the disclosure statement and confirmation of the plan for the same time and date as the continued status conference set forth below?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement (dkt. 46, 47)*: See above.
Continued status conference: 10/16/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue as set forth below. Appearances are not required on 8/7/18.
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Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 9/4/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. The debtor's proofs of service continue to be defective. Elizabeth Cruz declares that she has served the "PROOF OF SERVICE" itself, not the underlying orders. See dkt. 20 at PDF p.2 and dkt. 31 at PDF p.2.
At the hearing counsel is directed to explain why the proofs of service are defective, and what steps will be taken to correct this issue so that it no longer occurs. The deadline is 6/19/18 to file further amended proofs of service of both orders (the order setting principal status conference etc. at dkt. 6, and the bar date order at dkt. 23).
Deadlines/dates. This case was filed on 3/6/18.
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Bar date: 6/15/18 (Order, dkt. 23). See above.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/7/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 13). Counsel must address:
Income as of petition date or current? The debtor has filed an amended bankruptcy Schedule I (dkt. 30). Is that actually intended to be a decaration of postpetition income, or a correction of the debtor's income as of the petition date?
Amended budget motion? Should an amended budget motion needs to be filed and served, or is such notice unnecessary and should the budget be deemed amended, in view of what appears to be an increase of approximately $168 in the debtor's monthly income (compare dkt. 13 at PDF p.8, debtor's personal income of $2,800, with dkt. 30, line 7, debtor's personal income of $2,968)?
Cash collateral motion (dkt. 12). Grant on a final basis, on the same terms as the interim order (dkt.24).
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Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). Note: Timely served? Per the proof of service (dkt. 26, the "POS") the debtor served the POS itself on creditors. Presumably the debtor means that she served the order on creditors (not the POS), but the debtor is directed to file an amended POS saying so, no later than 5/3/18.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Failure to serve order. This Court's order setting this status conference (dkt. 6) directed the debtor to serve a copy of that order on all parties in interest no later than 14 days prior to this status conference. No proof of service appears on the docket. The tentative ruling is to set a deadline of 4/11/18 for the debtor to effect such service, with a caution to counsel that in future such failure may result in sanctions.
Budget motion (dkt. 13). Grant on an interim basis, with a final hearing on the same date at the continued status conference set forth below.
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Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
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fr. 6/13/17, 6/20/17, 9/19/17, 11/7/17, 1/23/18, 02/13/18, 4/10/18, 07/17/18
Docket 1
Tentative Ruling for 9/4/18:
Continue as set forth below. Appearances are not required on 9/4/18.
This Court has reviewed the debtors' latest filed documents, including the Status Report (dkt. 163) filed 7/10/18 in which debtors anticipated (i) completing payments by 8/9/18 and (ii) filing a motion for discharge thereafter. This Court is not aware of issues that would warrant a status conference at this time, but the Court is setting a deadline for the filing of a status report, as set forth below, for the debtors to apprise the Court of any other developments regarding this case and its final disposition.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 10/9/18 at 1:00 p.m., brief
status report due by 9/25/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 7/17/18:
Continue as set forth below. Appearances are not required on 7/17/18.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 9/4/18 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Service of voting package. The proof of service (dkt. 140) states that the voting package has been served on "Secured and Twenty Largest Unsecured Creditors." (Emphasis added.) The voting package should have been served on all creditors. Is the proof of service in error? If so, the tentative ruling is to set a deadline of 4/11/18 for the debtor to file a corrected proof of service. If not, counsel for the debtor should be prepared to address
the dates and procedures for re-balloting and a continued hearing and (ii) not charging attorney fees for correcting this issue.
Disclosure statement (dkt. 134) and plan (dkt. 135), and motion to
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modify plan (dkt. 142). The debtor has not filed any ballot summary. If sufficient ballots have been received to vote in favor of confirmation by the requisite majorities then the tentative ruling is to approve the disclosure statement on a final basis, grant the motion to modify the plan, and confirm the plan as modified. All of the foregoing is contingent, however, on the debtor filing a sufficient ballot summary no later than 4/11/18.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 7/17/18 at 1:00 p.m. Status report due 7/9/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 127) and Disclosure Statement (dkt. 126).
Impairment - Class 2B. The Plan lists Class 2B as unimpaired - is it?
Impairment - Class 4A. The Plan does not specify whether Class 4A is impaired.
DIP Financing. Class 2C appears to consist of the debtor's contemplated postpetition DIP borrowing (dkt. 111, 121). First, classes under
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the Plan are reserved for prepetition debts, whereas repayment of postpetition DIP financing should be reflected in cash flow projections (Ex.C) (this is not just an academic issue: for example, Classes vote; DIP lenders do not).
Second, Endnote 2C (in Ex.H) appears to relate to this "Class" of DIP fiancing, and it appears to state that the terms of that financing are unknown ("Debtors will have full and accurate loan information as the loan is processed"). The debtors' counsel must address at the hearing whether there is any reason why the Plan cannot be updated to reflect the actual financing terms, which would eliminate the need for any such Endnote.
Stipulation with US Bank. The Plan should attach a copy of the Stipulation (dkt. 124) with creditor U.S. Bank N.A. (as trustee); Wells Fargo Home Mortgage as servicer (collectively, "US Bank"), as it may be modified (see below re possible amendments to that Stipulation). See dkt. 129 (limited objection of US Bank).
US Bank's concerns (dkt. 129). This Court's posted procedures (available at www.cacb.uscourts.gov, under Judge Bason) provide in part:
§ 362: Automatic Stay. (1) Stipulations. Generally, the judge will not approve a stipulation for relief from stay/adequate protection order (“APO”) that purports to be automatically effective ... because there might be equity in the property [Emphasis altered.]
Consistent with this limitation, US Bank agreed to an Adequate Protection Order ("APO") which does not provide for any automatic termination of the automatic stay. Instead it provides (in the APO attachment, at paragraph 6.b.) that in the event of a default:
[US Bank] may file and serve a declaration under penalty of perjury specifying the default, together with a proposed order terminating the stay, which the court may grant without further notice or hearing.
More recently, however, US Bank entered into its Stipulation with the debtors (dkt. 124) which not only includes the above-quoted language about what will happen in the event of a pre-confirmation default but goes on to add another clause. It states:
5. [US Bank] may file and serve a declaration under penalty of
perjury specifying the default, together with a proposed order Terminating the Automatic Stay, which the Court may grant without
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further notice or hearing, and Creditor (and/or its servicer) may commence any and all action necessary to obtain complete possession of the Subject Property ... without further notice, order, or proceeding of this Court. [Emphasis added.]
US Bank argues (dkt. 129, p.6:3-12) that this language in the
Stipulation was "taken from" the APO (para. 6.b.), but this is not quite accurate: the emphasized language has been added. Does that additional language mean anything? US Bank now appears to argue that it means nothing - that "the intent was simply to maintain the status quo like it is under the APO" (dkt. 129, p.6:6).
This Court agrees: the emphasized language appears to be surplusage; but unfortunately it is arguably subject to a different interpretation. Because it is unusual for parties to add meaningless language to their stipulations, the emphasized language arguably could be read to mean that US Bank could "commence" all actions necessary to foreclose without any order of this court.
Because of this (and other) ambiguities in the Stipulation this Court added the following caveat in its order approving the Stipulation:
... notwithstanding anything in the Stipulation to the contrary, the automatic stay will not automatically terminate upon a default or conversion of this case except as to Debtors (i.e., no automatic termination as to the bankruptcy estate, so as to preserve any equity that might then exist in the property for the benefit of other creditors) [Dkt. 128, p.2:5-8, emphasis in original]
US Bank now requests "that the Order [approving the Stipulation] be amended to clarify that any pre-confirmation default shall be in accordance with the [Stipulation] at paragraph 5, or in the alternative, pursuant to the existing APO, paragraph 6(b)." Dkt. 129, p.6:10-12. This Court believes the simpler solution - both in this case and in all future cases - would be to delete the surplus language in paragraph 5 of the Stipulation. US Bank's counsel should be prepared to address whether they will agree to delete the surplus language in paragraph 5 of the Stipulation in this case and in all future stipulations in any case before this Court.
Similarly, paragraph 13 of the Stipulation ends by stating that in the event the debtors' case is dismissed or converted then not only shall US Bank retain its lien securing the full dollar amount it is owed (less any payments received) but also "the Automatic Stay shall be terminated without further
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notice, order or proceeding of the Court." (Emphasis added.) US Bank has now agreed to delete this emphasized language. See dkt. 129, pp.5:26- 6:2. Again, US Bank's counsel should be prepared to address whether they will delete this language in all future stipulations in cases before this Court.
Another concern raised by US Bank is that this Court's language in the order approving the Stipulation (quoted above) appears to limit paragraph 6 of the Stipulation, which provides that upon confirmation of debtors' chapter 11 plan "the Automatic Stay shall be deemed terminated as to the Debtors and the estate" and US Bank can pursue its contractual remedies under the loan documents "without further notice, order, or proceeding of this Court." Dkt.
124, p.4:12-18. This Court did not intend to override that provision - the tentative ruling is that upon confirmation of a chapter 11 plan it is entirely appropriate to provide that the automatic stay no longer applies because then the parties have a revised contractual relationship - so US Bank is correct that the order approving the Stipulation is overbroad to the extent that the language added by this Court affects paragraph 6 of the Stipulation.
Based on all of the foregoing, the tentative ruling is that if US Bank will agree to amend its Stipulation in paragraphs 5 and 13 as set forth above (to delete the language about automatic termination of the automatic stay), and leave paragraph 6 unchanged, this Court will approve that Stipulation without the modification that is included in the current order approving the Stipulation. The debtor will need to attach the amended Stipulation to the Plan.
Note: The parties might wish to take the opportunity to review the Stipulation for any other provisions that would benefit from revision. For example, this Court notes that paragraph 13 of the Stipulation starts by providing that "[t]he terms of this Stipulation are contingent upon Debtors' confirming a Chapter 11 Plan." Dkt. 124, p.6:8-8. Read literally this would mean that the Stipulation's terms regarding pre-confirmation defaults (para. 5) are contingent upon confirmation, which makes no sense. Other provisions similarly do not appear to be intended to be contingent on confirmation (but it is up to the parties to decide if they wish to clarify such issues).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 127)/Disclosure Statement (dkt. 126)*: 2/27/18 deadline
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to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference, with a revised stipulation with US Bank attached, and lodge Judge
Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 4/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue this status conference to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtors' apparent need to amend the proposed plan in view of the recent withdrawal of their objection to the prior claim of the Internal Revenue Service ("IRS") in view of the IRS' amended claim (see dkt. 119);
the debtor's failure to file a brief status report (due 1/16/18 per the adopted tentative ruling for the 11/7/17 hearing, reproduced below); and
the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the federal government.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Continue to 1/23/18 at 1:00 p.m. to address the following issues. Appearances are not required on 11/7/17.
Reasons: This court is continuing the hearing in light of the response filed by the IRS (dkt. 105) and because (1) if the dollar amount owed to the IRS changes then changes also will be needed to the amended plan (dkt. 107) and amended disclosure statement (dkt. 106) and (2) although the debtor correctly deleted Endnotes 2, 2A, 2B and 2C from Exhibit H, the debtor forgot to delete the references to those (non-existent) endnotes on Exhibits A and E. No later than 1/16/18 the debtor is directed to file an amended plan to cure these issues, if possible, or alternatively a very brief status report (e.g., one or two sentence).
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/19/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Monthly Operating Report (dkt. 94). What is the $700 transfer for 8/31/17 (at p.4) entitled "money owed"? The debtor reports one missed payment to Wells Fargo in the amount of $2,167.68 (at p.10), as against onl y
$2,398.12 in her rental property account (p.11) and $1,404.57 in her personal account. Is the debtor losing money? Can the debtor propose a feasible plan of reorganization?
Plan (dkt.92) /Disclosure Statement (dkt. 91). (i) These documents are not signed by the debtors ("/s/" typed signatures are only permitted for
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limited categories of persons, such as registered CM/ECF users). (ii) The Disclosure Statement contemplates claim objections (dkt. 91, Ex.H, Endnotes 1-2). Why have these issues not been resolved by now? (iii) The Disclosure Statement's Endnotes 2A, 2B, 2C and 5 repeat (and/or misstate) the terms of the Plan. Those endnotes should be deleted. (iv) The Disclosure Statement's Ex.C (income/expenses) is divided into two periods, but the income and expenses appear to be identical in each period. Why should this not be a single period?
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt.92) /Disclosure Statement (dkt. 91)*: 10/24/17 deadline to file amended documents.
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Status Report. The debtor is using an outdated form. The current version is Local Form F 2081-1.1.CH11.STATUS.RPT.
Cash collateral motion (dkt. 30). Grant on a final basis, on the same terms as in the interim order (dkt. 58).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
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Plan/Disclosure Statement*: file by 9/5/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee).
Continued status conference: 9/19/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
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Docket 544
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the status conference (calendar no. 4, 9/4/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel
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Docket 490
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the status conference (calendar no. 4, 9/4/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel
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fr. 8/3/18
Docket 461
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the status conference (calendar no. 4, 9/4/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
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fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18
Docket 1
Tentative Ruling for 9/4/18:
Appearances are not required on 9/4/18.
Current issues.
Dissolution of "Oh Happy Day" (dkt. 544, 579, 583, 602). Grant, provided that all assets (tangible or intangible) in which Oh Happy Day, LLC currently has an interest must continue, after dissolution of that entity, to be administered by the Agent (to the full extent of any interest the debtor has in such assets). See Term Sheet (dkt. 547), section 6 (defining Agent Assets).
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Employment of Ballard, Rosenberg firm/Schwettmann as Special Counsel (dkt. 490, 532, 533, 546, 582). Continue to the same date and time as the continued status conference (set forth below), for the reasons set forth in the responses (dkt. 546, 582). In addition, no later than 10/2/18 the debtor is directed to file a supplement clarifying whether the proposed employment is of Mr. Schwettmann individually or his firm.
Expand Kaplan Employment (dkt. 461, 480, 497, 505, 534, 575, 576). Continue to the same date and time as the continued status conference (set forth below), for the reasons set forth in the latest documents (dkt. 575, 576).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD.
Continued status conference: 10/16/18, with a brief status report due 10/9/18.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
This court anticipates issuing or posting a tentative ruling at a later time.
Tentative Ruling for 8/3/18:
Appearances required. The tentative rulings are set forth below. In addition, the tentative ruling is to set a continued status conference on 8/16/18 at 10:00 a.m., or such alternative time as may be ordered at the hearing.
Current issues.
Motion to Confirm Dean Rallis as Agent (dkt. 536). Grant (approve the appointment of Dean Rallis, Esq. as Agent) under the Term Sheet, as amended (see below), and subject to the provisions of this Court's order approving the settlement (dkt. 528, paragraphs 3, 4, and 6-8). The tentative ruling to grant this motion is based on the representation in the motion (dkt. 536, p.9:5-9) that the parties who objected/reserved their rights to object have now consented to the appointment of Mr. Ralis. (This Court disregards the invective, id. n.3 & accompanying text.) If that is incorrect then this tentative ruling is subject to any opposition at the hearing (see OST, dkt. 538). This tentative ruling is also based on this Court's review of the other relevant documents. See dkt. 495 (selection of proposed agent), 528 (order approving settlement), 531 (objection), 535 (Committee support), 536 (motion), Application for Order Shortening Time (dkt. 537, 540) and evidence of service (dkt. 541).
Proposed order: Counsel for the debtor is directed to lodge a proposed
order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
9019 Motion (see Term Sheet, dkt. 445, 528). This Court's Order (dkt. 528) approving Settlement directed the parties to prepare, sign and file a
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final version of the "Term Sheet" reflecting certain modifications. This Court notes that the debtor appears to have circulated a revised Term Sheet (dkt. 536, Ex.A) that incorporates the changes discussed on the record, although that revised Term Sheet is not "redlined" and this Court has not engaged in any line-by-line review of its terms. In any event, the parties are directed to provide a status report on when a declaration will be filed with this Court memorializing the fully executed final Term Sheet.
Motion to Extend Time to Assume or Reject Lease (dkt. 457). The tentative ruling is to continue this motion to the date and time of the continued status conference, for the authorized Agent to consider and take a position on the merits of this motion.
Analysis: Although the debtor argues (e.g., in dkt. 534) that she is prejudiced by any lack of immediate decision on pending matters, the tentative ruling is that the debtor has not established undue prejudice because of (i) the debtor's own delay in selecting a nominee to be the Agent,
the debtor's ability to engage in numerous other activities to attempt to turn around her finances without having to wait for those particular pending matters to be resolved, and (iii) the fact that, as this Court interprets the deadlines in the Term Sheet, "Approval" of the settlement did not occur until "entry" of an order approving the settlement (see dkt. 474, Ex.C, section 1, 1st paragraph, penultimate sentence), and the oral ruling was not entered on the docket, only the written order (dkt. 528) was entered, so the time of Approval (which commences the time for the debtor to perform various tasks under the Term Sheet) did not commence until entry of that written order on 7/25/18.
Motion to Assume and Assign 1629 Griffith Lease (Presbytery) (dkt. 351). Continue to the date and time of the continued status conference, for the authorized Agent to consider the merits of this motion, for the same reasons as stated in section (1)(c) of this tentative ruling, above.
Motion to Expand Scope of Kaplan Emplolyment (dkt. 461, 480, 497, 505, 534). Continue to the date and time of the continued status conference, for the authorized Agent to consider the merits of this motion, for the same reasons as stated in section (1)(c) of this tentative ruling, above.
Scheduling Conference re: Evidentiary Hearing on Motion to Assume 1356 Palmetto Lease (Bridge Tavern/Villain's) (dkt. 187). At the 7/18/18 hearing, this Court was informed that the proposed assignee/buyer had withdrawn. This Court subsequently issued an Order (dkt. 501) deeming
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the portion of the motion that sought to assign the lease moot and withdrawn, and continuing the portion of the motion that seeks to assume the least to this hearing solely for scheduling further proceedings on this motion. The parties should be prepared to address a schedule for this motion and/or whether to continue the scheduling matters so that the Agent can determine whether or not to pursue this motion and related matters.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD.
Continued status conference: Date and time set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/16/18:
Appearances required. The tentative rulings are set forth below. In addition, the tentative ruling is to set a continued status conference on 7/27/18 at 9:00 a.m., or such alternative time as may be ordered at the hearing.
Current issues.
9019 Motion (see Term Sheet, dkt. 445). This Court will address the objections filed by Mr. Casanova (dkt. 465, 466) and The Presbytery of the Pacific (the "Presbytery") (dkt. 467) and the replies filed by the debtor (dkt. 472) and by the Archbishop/Institute and the Bird Nest (dkt. 474). Among other things, this Court will address whether the Term Sheet can be approved without the further documentation that is contemplated by the settling parties. In that regard, the parties should address the proposed amendment to paragraph 6 of the Term Sheet. See dkt. 474, Ex.C.
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This Court expresses no present opinion on those issues. This Court
is intentionally withholding any further tentative ruling on those matters so as not to disrupt potential settlement discussions among those parties, but if the parties have not agreed to the proposed amendment to paragraph 6 (or some other resolution) then this Court intends to provide a tentative ruling at the commencement of the hearing.
The parties are encouraged to meet and confer about the foregoing issues. If, at the end of the hearing, there are issues that remain to be addressed, then the parties should be prepared to address whether this Court should set a continued hearing on the date and time specified at the start of this tentative ruling or some other date.
Stay relief motion (appellate litigation with Bird Nest and Archbishop/Institute) (dkt. 68). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Exclusivity motion (dkt. 308, 348, 422). Continue to the date and time set forth at the start of this tentative ruling, and meanwhile extend exclusivity for the same amount of time, on the same terms and conditions as this Court's Prior Order (dkt. 422) - i.e., no incurring of fees or expenses for plan-related work. This Court calculates that the extensions would be as follows: (i) The 120-day period specified in section 1121(c)(2) and (d)(1) (deadline for filing a plan) will be further extended from 8/15/18 (see dkt. 422) to and including 9/19/18, and (ii) the 180-day period specified in section 1121 (c)(3) and (d)(1) (deadline for acceptance of plan by impaired classes) will be further extended from 10/15/18 (see dkt. 422) to and including 11/19/18.
Cash Collateral motion (dkt. 5). Continue to the date and time set forth at the start of this tentative ruling, and meanwhile extend the interim authorized use of cash collateral through and including the conclusion of the continued hearing subject to the same terms and conditions as previously authorized by this Court (see dkt. 29, 79, 239, 244, 347, 413), if this motion is not mooted by the disposition of the settlement motion.
Bridge Tavern, LLC asset sale motion (dkt. 112). Continue to the date and time set forth at the start of this tentative ruling.
Villain's Tavern reopening motion (dkt. 214). Grant. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Trustee appointment motion (dkt. 332). Continue to the date and
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time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Security Deposit refund motion (dkt. 350). Grant. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Budget motion (dkt. 96). Extend the interim authorization through and including the date of the continued hearing and meanwhile approve the budget subject to the same terms and conditions as previously authorized by the Court (see dkt. 340), if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Bird Nest) (dkt. 292). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Institute) (dkt. 296). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Archbishop) (dkt. 294). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Vehicle refinance motion (dkt. 216). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Vehicle relief from Stay motion (dkt. 349). The hearing on this motion has been vacated, and this matter is off calendar (see Adequate Protection Order, dkt. 444).
Motion to Assume and Assign 1629 Griffith Lease (dkt. 351). Continue to the date and time set forth at the start of this tentative ruling.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD.
Continued status conference: Date and time set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/22/18:
Appearances required.
Current issues.
Urbanlime/Haro employment (dkt. 93, 253), Bridge Tavern (Villain's) Reopening Motion (dkt. 214, previously granted, dkt. 339, but rescheduled per dkt.369 para. 4.5), Sale Motion (dkt. 112, temporarily denied, dkt. 369, 385) and Lease Assignment Motion (dkt. 187, re-set for hearing, dkt. 388). The parties should be prepared to address the issues set forth in this Court's orders (dkt. 369, 378, 385, 388) setting this hearing.
Motion to extend exclusivity (dkt. 308, 312, 333, 348). The tentative ruling is to preserve the status quo by:
prohibiting the estate from incurring any fees or expenses relative to any contemplated plan between time this tentative ruling is posted and the conclusion of the hearing on the motion to appoint a trustee (dkt. 332, the "Trustee Motion"), currently scheduled for 7/10/18 at 2:00 p.m;
if the Trustee Motion is denied, then extending exclusivity through at least 8/14/18 (any further extension will be addressed at the hearing on 7/10/18 at 2:00 p.m.), so that Mr. Tilem will have the time he has stated he would need to draft a plan (approximately 30 days); and
if the Trustee motion is granted, then terminate exclusivity. (c) Cash collateral motion (dkt. 5, 14, 15, 29, 74, 151, 152, 163, 164,
167, 168, 171, 172, 176, 185, 244). The tentative ruling is to continue this matter to 7/10/18 at 2:00 p.m., and meanwhile authorize the continued use of cash collateral through the conclusion of that continued hearing.
(d) Relief from stay motion (dkt. 68, 79, 141, 147, 154, 162, 222 section v., 270, 312). The tentative ruling is to continue this matter to 7/10/18 at 2:00 p.m.
Expansion of Insul employment (dkt. 305). Please see calendar no. 2 (6/22/18 at 10:00 a.m.).
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Hearings on 7/10/18. Some matters in this case have been self-
calendared for 7/10/18 at 1:00 p.m. The tentative ruling is that all matters set for 7/10/18 in this case will be heard at 2:00 p.m.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 7/10/18 at 2:00 p.m., status report due 7/5/18 at noon.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
This court anticipates posting a tentative ruling at a later time. [Note: no further tentative ruling was posted.]
Tentative Ruling for 5/7/18:
[See Memorialization of Tentative Rulings for 5/7/18 (dkt. 234, 236, 238, 239)]
Tentative Ruling for 5/3/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The only issue this Court intends to address is a continued hearing date in view of the last-minute papers that were filed, to fit the parties' and this Court's own needs.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear.
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash flow and cash collateral motion (dkt. 5, 14, 15, 29). This Court's written order (dkt. 29) erroneously lists the continued hearing as 3/20/18 instead of 4/17/18 at 2:00 p.m., as orally ordered at the hearing on 3/9/18. Nevertheless, it is appropriate in connection with this Status Conference to address the debtor's current and projected cash flow and related issues.
This Court was not persuaded at the hearing on 3/9/18 that the debtor can generate positive cash flow. The debtor is directed to provide a brief update on any plans to generate positive cash flow from her various businesses and properties. It is also appropriate for other parties in interest to address whether there has been adequate disclosure to date regarding the finances of those businesses and properties. The debtor is cautioned that the declaration due on 3/27/18 must provide comprehensive disclosures regarding those businesses and properties: if the debtor cannot show reasonable prospects for positive cash flow within a reasonable time then this Court might have to grant relief from the automatic stay (upon a proper motion), or convert or dismiss this bankruptcy case, at least if the debtor does not abandon unprofitable businesses or properties.
Employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt. 9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure),
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including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why were resumes for associates, paralegals, and persons who are "of counsel" to the firm not included? (ii) Has counsel waived or amended the provisions in the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined in the parties' papers)?
Proposed special counsel: the Snyder firm (dkt. 36, 37). (i) What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
(ii) What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 4/17/18 at 2:00 p.m., status report due 4/3/18. (see order, dkt. 30).
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/9/18:
[no tentative ruling was posted for this hearing]
Debtor(s):
Dana Hollister Represented By David A Tilem
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and Tsuneo Hisanaga to Convert Case From Chapter 11 to Chapter 7
Docket 185
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
4/10/18, 5/8/18, 6/12/18, 6/19/18, 7/10/18, 08/14/18
Docket 1
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 7/10/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 7/10/18 at 2:00 p.m.)
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/19/18 at 2:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
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Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement (dkt. 175, 176).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 177), appear to be identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 186, 187, 188. Counsel are directed to alert this Court and the parties at the hearing if they are not.
For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/12/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 175, 176): At the status conference this Court will discuss appropriate deadlines.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required.
Current issues.
Joint Plan/Joint Disclosure Statement (dkt. 165, 166).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 167). are substantially identical to the documents filed in the related
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bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 176, 177, 178. For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 5/8/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Joint Plan/Disclosure Statement* (dkt. 166, 167): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 57). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
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Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and
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for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms
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required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
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Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
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Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
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Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
(2) Claim and Delivery; (3) Conversion; (4) Breach of Guaranty;
(5) Fraud; (6) Preliminary Injunction; and (7) Constructive Trust fr. 5/8/18, 6/12/18, 6/19/18, 07/10/18, 08/14/18
Docket 1
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 7/10/18 (same as for 6/19/18):
Please see the tentative ruling for the Sakurai status conference (calendar no. 2, 7/10/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Appearances required.
Current Issues.
Joint Status Report and Notice of Continuances. This Court's 5/8/18 tentative ruling (see below) was not opposed, so it became this Court's actual ruling.
This Court directed (i) Checkmate to file and serve a notice of continuances attaching and incorporating by reference the deadlines in that tentative ruling by 5/7/18, and (ii) the parties to file a brief joint status report by 5/29/18. As of the preparation of this tentative ruling, none of the parties have complied. The parties are cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
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Motion for TRO & Claim and Delivery (adv. dkt. 10).
Plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") has filed a stipulation (adv. dkt. 30) with defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") for turnover of equipment. But Checkmate has not provided any evidence that it has relief from the automatic stay and consent of the Chapter 7 Trustee in the RS and Fower bankruptcy cases for such turnover (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA). The tentative ruling is to set a deadline of 6/19/18 for Checkmate to file a declaration attaching evidence sufficient to establish those things, and lodge a revised proposed order to approve the stipulation.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time. Continue to 7/17/18 at 2:00 p.m., brief joint status report due 7/3/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
The tentative ruling is to continue all pending matters in this adversary proceeding to 6/12/18 at 2:00 p.m. for the reason stated below, with a brief joint status report due 5/29/18, and with a deadline of 5/7/18 for the plaintiff to file and serve a notice of continuances attaching and incorporating by reference the deadlines in this tentative ruling (assuming that this Court is not persuaded to depart from this tentative ruling). Appearances are not required on 5/8/18.
Current Issues. This Court has reviewed the parties' status reports (adv. dkt. 24 & 26) and the other filed documents and records in this adversary proceeding.
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Motion for TRO & Claim and Delivery (adv. dkt. 10). At the 4/9/18 hearing on this motion, counsel for plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") apprised this Court of the bankruptcy filings of defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA) and requested a continuance of this hearing to allow time to obtain orders granting relief from stay with annulment. In the Joint status report (adv. dkt. 24), Checkmate states that the hearings on the relief from stay motions are scheduled for 5/15/18. Accordingly, the tentative ruling is to continue this motion to the date and time set forth at the start of this tentative ruling.
Siemens Motion to Dismiss (adv. dkt. 27, the "MTD"). Defendant Siemens Medical Solutions USA, Inc. ("Siemens") has properly self- calendared its MTD for 6/12/18 at 11:00 a.m. Siemens anticipates that it may be voluntarily dismissed by plaintiff (see adv. dkt. 24), but if that does not occur then this Court anticipates that the MTD may take 15 minutes or more to hear. This Court's practice is that matters anticipated to take 15 minutes or more are heard on the 2:00 p.m. calendar (not available for self-calendaring, except by permission of this Court). Therefore the tentative ruling is to re- calendar the MTD from 11:00 a.m. to 2:00 p.m., which is concurrent with the other matters in this adversary proceeding that are on today's calendar.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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Defendant(s):
Radiology Solutions Corp. Represented By Vatche Chorbajian
George Tyler Fower Represented By Vatche Chorbajian
Siemens Medical Solutions USA Inc Represented By
Marsha A Houston
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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Tsuneo Hisanaga to Convert Case From Chapter 11 to Chapter 7
Docket 199
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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Docket 197
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
2:00 PM
Docket 206
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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4/10/18, 5/8/18, 6/12/18, 6/19/18, 7/10/18, 08/14/18
Docket 1
Tentative Ruling for 8/14/18:
Appearances required.
Current issues.
Fresco Parties' Motion to Convert Cases (dkt. 199 & Checkmate 2:17-bk-22648-NB, dkt. 185). The tentative ruling is to grant Fresco's motions to convert the Checkmate and Sakurai cases to chapter 7 for the following reasons.
Gross mismanagement. The tentative finding of fact is that the debtors have grossly mismanaged their estates such that cause exists under 1112(b)(4)(B) to convert their cases. These cases have been pending for nearly a year, since 10/16/17, only very belated and half-hearted investigation or collection activity against Radiology Solutions and Fower - either using legal enforcement or practical steps. For example, at hearings on 11/14/17 and 1/30/18, the debtors maintained their belief that they could recover 100% on the dated receiveables from Radiology Solutions, despite this Court's expressed concerns with the debtors' counsel regarding the apparent lack of collection activity based on Checkmate's failure to use the vast panoply of litigation tools available to them, including examinations under Rule 2004 (Fed. R. Bankr. P.), other discovery tools, remedies such as immediately seeking restraining orders and injunctions, and non-litigation approaches such as pressuring Radiology Solutions and Fower by reporting their defaults to Siemens or attempting to use pressure from other suppliers, customers, government regulators, or other persons. All of those avenues should have been explored vigorously, both prepetition and postpetition, and disclosed to parties in interest in these cases.
Other "cause." The debtors appear to have run through vast amounts of money to "purchase" equipment that does not exist, and yet as
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set forth above they have a very cavalier attitude toward attempting to engage in discovery or collection, while continuing to insist that they expected very substantial recoveries from those sources and/or from equipment (which turned out not to exist). The tentative finding of fact is that these circumstances show not just gross mismanagement but also that the debtors are hiding facts, or they are attempting to run out the clock on possible causes of action against them or transferees of their assets, or both.
The debtors' counter-argument about the best interests of creditors is not persuasive. The debtors argue that under their liquidation analysis (Sakurai, dkt. 240, PDF p. 14, Checkmate, dkt. 194, PDF p. 17) creditors will receive faster and better recoveries if the debtors are permitted to engage in a liquidation through chapter 11, rather than converting these cases to chapter 7. There are several problems with this argument.
First, this Court questions the debtors' projected recoveries in chapter
11. The debtors have been wildly inaccurate (or have intentionally hidden the truth) before, as set forth above. This Court has no faith in the Debtors to adequately disclose and maximize the value of their remaining assets, such as the house in Japan or purported interests in that house. Moreover, this Court is concerned about the debtor's management of whatever is recovered, such as what might happen to proceeds from the sale of real property. This Court recognizes that safeguards can be attempted; but safeguards can also be evaded, and the tentative ruling is that the simplest and best safeguard is to appoint a chapter 7 trustee.
Second, this Court questions the debtor's projected lack of substantial recoveries in chapter 7. The tentative ruling is that the Fresco Parties have the better arguments regarding the potential benefits to unsecured creditors in a chapter 7 case (perhaps as much as 80% or more).
Third, supposing for the sake of discussion that the debtors were accurate in their projected recoveries in a liquidating chapter 11 case, and their comparison with projected recoveries in a chapter 7 case, that is not the only consideration. This Court must consider the integrity of the bankruptcy system. Given the debtors' gross mismanagement and this Court's concerns about the debtors' conduct (as described above) it appears that the only adequate safeguard of the integrity of the bankruptcy system is to convert these cases to chapter 7.
Evidentiary Objections (Sakurai, dkt. 233, 252) & (Checkmate 2:17-bk-22648-NB, dkt. 200, 204). The tentative ruling is that the
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history of this case and this Court's own admonishments to the debtors provides ample support for conversion, so this Court need not resolve the parties' respective evidentiary objections.
Proposed Orders. The Fresco Parties are directed to lodge proposed orders via this Court's LOU system within 7 days of the hearing.
Application to Employ KW Commercial Inland Empire (dkt. 197) and Neiman Realty (dkt. 206). If this Court adopts the tentative ruling set forth above, the tentative ruling is to continue these hearings to the date and time set forth below to allow time for the chapter 7 trustees to weigh in.
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The tentative ruling is to continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: TBD based on the outcome of the Conversion Motions.
Continued status conference: If this Court converts these cases to chapter 7, the tentative ruling is to continue the status conference in the Sakurai and Checkmate cases to 10/9/18 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Continue the status conferences in this case, the related Checkmate case (2:17-bk-22648-NB), and RS/Fower adversary proceeding (2:18-ap-01602- NB) as stated below. Appearances are not required on 8/14/18.
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Current issues. This Court does not have any issues to raise sua sponte.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Amended Joint Plan/Amended Joint Disclosure Statement*: TBD at the continued status conference.
Continued status conference: 9/4/18 at 2:00 p.m., to be heard concurrently with Fresco's motions to convert the Sakurai and Checkmate cases to chapter 7. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18 (same as for 6/19/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to provide an update on the status of their negotiations, and whether all matters on calendar for today in the Sakurai and Checkmate cases (including the adversary proceeding against Fower and Radiology Solutions) should be continued to 8/7/18 at 2:00 pm., with a brief status report due 7/24/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 186, 187, 188). At the status conference this Court will address changes that need to be made to the amended disclosure statement and amended plan prior to service on creditors.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 186, 187): At the status conference this Court will discuss deadlines for filing an amended disclosure statement and plan, and whether to set hearing(s) on final approval of the disclosure statement and whether to approve the plan.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required by counsel for the debtors but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
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(a) Joint Plan/ Joint Disclosure Statement proposed by the Sakurais
and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 176, 177, 178). At the status conference this Court will address numerous issues with these documents.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Joint Plan/Disclosure Statement* (dkt. 176, 177): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 48). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Fresco Adversary Proceeding (adv. case no. 2:17-ap-01558-NB),
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including motion to remand (adv. dkt. 8). The tentative ruling is that this matter will be mooted, assuming that this Court approves the parties' proposed settlement, and therefore this matter should go off calendar. The parties are reminded to file appropriate papers to have this matter dismissed once the settlement is fully implemented.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the
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Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned,
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the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
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Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
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U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the
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tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
2:00 PM
to Comply with Federal Rule of Bankruptcy Procedure 2019 fr. 5/1/18, 5/22/18, 08/07/18
Docket 125
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
2:00 PM
State Court Action is exempt from automatic stay [NA]
COUNTY OF LOS ANGELES
vs DEBTOR
Docket 9
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling is that the governmental unit's policy and regulatory power exception to the automatic stay applies. See 11 U.S.C. 362(b)(4).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Mary Lou Jacobs Pro Se
Movant(s):
County Of Los Angeles Represented By Paul H Kim
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
10:00 AM
with creditor Broker Solutions, Inc. dba New American Funding
Docket 31
Debtor(s):
Carl Dean Edwards Represented By Dennis Connelly
Joint Debtor(s):
Roberta Lynn Edwards Represented By Dennis Connelly
Trustee(s):
Elissa Miller (TR) Represented By Claire K Wu
10:00 AM
with creditor Nissan Motor Acceptance Corporation
Docket 10
Debtor(s):
Jose A. Sanchez Represented By Benard C Udeozor
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
with creditor Nissan Motor Acceptance Corporation
Docket 9
Debtor(s):
Dalia Angeles Represented By
Sevag Nigoghosian
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
with creditor Santander Consumer USA Inc.
Docket 14
Debtor(s):
Elfi A. Martinez Represented By Christine A Kingston
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
with creditor Yamaha Motor Finance Corp.
Docket 16
Debtor(s):
Alejandro Lopez Represented By Omar Zambrano
Trustee(s):
Carolyn A Dye (TR) Pro Se
10:00 AM
with creditor and TD auto Finance LLC (2016 Nissan Sentra)
Docket 13
Debtor(s):
Lorena M Labra Represented By
Hale Andrew Antico
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
with creditor Ford Motor Credit Company LLC
Docket 16
Debtor(s):
Thomas Jay Perez Pro Se
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
with creditor The Credit Union Loan Source
Docket 9
Debtor(s):
Lisa Dobard Shawakih Represented By Elena Steers
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
with creditor Toyota Motor Credit Corporation
Docket 13
Debtor(s):
Alma Lainez Represented By
Jennifer Ann Aragon
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
Docket 8
Debtor(s):
Karen Waleska Colindres Pro Se
Trustee(s):
Carolyn A Dye (TR) Pro Se
10:00 AM
with creditor Northrop Grumman Federal Credit Union
Docket 12
Debtor(s):
Alex Markes Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
with creditor Ford Motor Credit Company LLC (2014 Ford Transit Connect)
Docket 10
Debtor(s):
Soraya G De los Santos Represented By Daniel King
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
with creditor Toyota Motor Credit Corporation
Docket 8
Debtor(s):
Antonio Olea Represented By
Omar Zambrano
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
with creditor Santander Consumer USA Inc.
Docket 7
Debtor(s):
Yoo Mi Park Represented By
William J Smyth
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
with creditor BMW Bank of North America
Docket 14
Debtor(s):
Maria A Murcia Represented By Laleh Ensafi
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
Docket 10
Debtor(s):
KENNETH FEWELL Represented By Paul C Nguyen
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
Docket 15
Debtor(s):
Jaime Alberto Castellon Represented By
Sevag Nigoghosian
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
with creditor Don Roberto Jewelers Inc
Docket 12
Debtor(s):
Narciso Castro Jr Pro Se
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
with creditor Toyota Motor Credit Corporation
Docket 9
Debtor(s):
Erin Kristina Pollard Represented By Raymond J Bulaon
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
Docket 11
Debtor(s):
Jose Antonio Balvaneda Reveles Represented By
Benard C Udeozor
Joint Debtor(s):
Bertha Balvaneda Represented By Benard C Udeozor
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 68
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Edwin Penuela Salveron Represented By Michael Y Lo
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 39
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Sagrario Medina Represented By William W Tiffany
Movant(s):
The Bank of New York Mellon FKA Represented By
Tyneia Merritt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 28
- NONE LISTED -
Debtor(s):
Jose Luis Lopez Represented By Matthew D. Resnik
Joint Debtor(s):
Yolanda Castro Represented By Matthew D. Resnik
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
US BANK NATIONAL ASSOCIATION
vs DEBTOR
Docket 31
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the pending proposed sale is sufficient evidence of adequate protection and equity in the property, and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 34).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bret Anthony Aguilar Represented By Nicholas W Gebelt
Joint Debtor(s):
Raquel Hernandez-Aguilar Represented By Nicholas W Gebelt
Movant(s):
US Bank National Association as Represented By
Diane Weifenbach
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF AMERICA, NA
vs DEBTOR
Docket 35
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Maria Dilcia Serrano Represented By Raymond Perez
Movant(s):
BANK OF AMERICA, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 32
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Christine Anne Casarez Represented By Alon Darvish
Movant(s):
Wells Fargo Bank, N.A., as Trustee Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ALAN S VERTUN, WILLIAM SCHMIDT BARBARA SCHMIDT et al
vs DEBTOR
Docket 40
Grant in part and deny in part as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Modification. Modify the automatic stay under 11 U.S.C. 362(d)(1)&(4) to provide that (a) no future bankruptcy case will have any effect on the subject property (in rem relief, as provided below) but (b) the stay will remain in place in this case for the moment, so that the Chapter 7 Trustee has an opportunity to sell the property, with a continued hearing on 11/6/18 at 10:00 a.m. so that, if the property has not been sold by then, the motion can be considered again.
Any co-debtor stay (11 U.S.C. 1301(c)) is also modified, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
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If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is insufficient evidence and notice.
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Natalie V Howard Pro Se
Movant(s):
Alan S Vertun, William Schmidt and Represented By
10:00 AM
Trustee(s):
Julian K Bach
David M Goodrich (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 14
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any
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additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved.
The tentative ruling in this particular case is that (a) there is sufficient evidence that the debtor was involved in the scheme - specifically, the motion papers include evidence that the debtor lists the property in his bankruptcy Schedule A/B (dkt. 14, p.88) - and (b) there is sufficient notice - specifically, even a debtor who is not represented by an attorney would know, from reading the motion papers, that the property in which he asserts an interest has been part of a scheme in which he is alleged to have been involved.
Accordingly, the tentative ruling is to find that the debtor was part of the scheme.
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ruben A Reyes Pro Se
Movant(s):
U.S. Bank National Association, as Represented By
10:00 AM
Trustee(s):
Merdaud Jafarnia
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICREDIT FINANCIAL SERVICES, INC.
vs DEBTOR
Docket 33
- NONE LISTED -
Debtor(s):
Tracie V. Kimbrough Represented By Steven A Alpert
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
KIA MOTORS FINANCE
vs DEBTOR
Docket 37
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Bernice Wallace Represented By Laleh Ensafi
Movant(s):
Kia Motors Finance Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NISSAN MOTOR ACCEPTANCE CORP
vs DEBTOR
Docket 9
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Andreas Baku Represented By Lindsey B Green
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
WESCOM CREDIT UNIION
vs DEBTOR
Docket 13
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Gus C. Martinez Represented By Jennifer Ann Aragon
Movant(s):
Wescom Credit Union Represented By Karel G Rocha
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
IDA WEST, INC.
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. The movant obtained a prepetition unlawful detainer judgment, and the debtor has not satisfied the statutory requirements to remain in possession. See 11 U.S.C. 362(b)(22) and (l)) and (b). The movant obtained a prepetition eviction judgment and writ of possession. See In re Perl, 811 F.3d 1120, 1127-28 (9th Cir. 2016) ("We conclude that under California law, entry of judgment and a writ of possession following unlawful detainer proceedings extinguishes all other legal and equitable possessory interests in the real property at issue.").
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief.
10:00 AM
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
Evidence. This court notes that the declaration attached to the motion is incomplete and/or contains changes to the mandatory form (which are hereby treated as a request to amend the form per LBR 9009-1). This court makes no determination whether such omissions/changes would withstand an evidentiary objection. Nevertheless, this court has considered the key documents because (a) there are no evidentiary objections and/or (b) those documents appear to be admissible on other grounds. In future the movant's failure to complete the form properly may result in denial of the motion sua sponte.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bartley Hornback Pro Se
Movant(s):
IDA WEST, INC. Represented By Barry L O'Connor
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [UD] TODD BRISCO
vs
DEBTOR
Docket 14
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Trisha Codd Pro Se
Movant(s):
Todd Brisco Represented By
Todd A Brisco
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
METAVOS DAVOODIAN
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Maria M Perez Represented By
Michael H Colmenares
Movant(s):
Metavos Davoodian Represented By Barry L O'Connor
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
Docket 12
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saul Torres Bahena Represented By Michael R Totaro
Movant(s):
Saul Torres Bahena Represented By Michael R Totaro
10:00 AM
F.R.C.P. 55 and 60(b)
Docket 38
Deny. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons for denial:
Although the loss of a home is tragic, creditor Nationstar Mortgage LLC dba Mr. Cooper ("Nationstar") has set forth a long history of defaults by the debtor and non-debtor spouse, as well as evidence of little equity cushion (perhaps none, after adding costs of sale, attorney fees, etc.). See dkt. 18,
19. Although the debtor's declaration explained his motivations (see dkt. 20) the bottom line is that he and his spouse still hindered and delayed Nationstar for a substantial time, without repaying the debt as promised. Nevertheless, this Court was persuaded to provide the debtor with one final opportunity to hold Nationstar at bay. That opportunity required timely payments or, if the payment was not timely, a full cure within 14 days after written notice of default. See dkt. 22 ("APO"). The debtor did not make timely payments, and then despite the additional opportunity to cure within 14 days after written notice, he did not cure the full amount due and he did not make the (partial) payment within the 14 day additional cure period.
This Court recognizes that the shortfall is small, both in the dollar amount and in the number of days after the 14 days of cure period. But those shortfalls come on top of a long history of failures to repay the debt as promised, and this Court's "one last chance" order with not only the opportunity to keep Nationstar at bay by making payments but also the additional leeway of any default requiring written notice and a 14 day period in which to cure that default. In other words, the debtor has had many "bites at the apple" and has not met the requirements under the APO.
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The debtor has not cited any authority that would suggest that his non- expedited mailing of the (partial) payment to cure his default under this "last chance" APO amounts to "excusable" neglect. Nor has the debtor established any other adequate cause to reconsider this Court's order (dkt.
33) terminating the automatic stay after his failure to cure his default under the APO. See Rule 60(b) (Fed. R. Civ. P., incorporated by Rule 9024, Fed.
R. Bankr. P.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Warren Obrian Williams Represented By Matthew D. Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 32
Debtor(s):
Anthony Garcia Represented By Brad Weil
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, N.A. vs
DEBTOR
Docket 28
Tentative Ruling for 9/18/18 (same as for 8/14/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 31).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Araceli A Castro Represented By Thomas B Ure
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
HSBC BANK USA, N.A.
vs
DEBTOR (S)
Docket 42
Tentative Ruling for 9/18/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 7/10/18 this Court was persuaded to continue this matter for the parties to attempt to negotiate an agreed adequate protection order. No such order has been lodged, but meanwhile this Court has authorized the sale of the subject property (see Order, dkt. 58) subject to certain conditions requested by the secured creditor. The parties are directed to address whether this hearing should be further continued to permit the sale of the property to close, or any other matters relevant to the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Grant as provided below. Appearances are not required.
10:00 AM
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alejandro Hernandez Castanon Represented By Jacqueline D Serrao
Joint Debtor(s):
Guadalupe Griselda Inda Represented By Jacqueline D Serrao
Movant(s):
HSBC Bank USA, N.A. Represented By Sean C Ferry Theron S Covey
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 25
Tentative Ruling for 9/18/18:
Grant as provided below. Reasons: At the hearing on 8/14/18 this Court was persuaded to continue this matter for the parties to attempt to negotiate an agreed adequate protection order, but no such order has been lodged.
Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is
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denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David Watson Gayman Represented By Matthew D. Resnik
Movant(s):
WELLS FARGO BANK, N.A., Represented By Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 55
Debtor(s):
Leticia Garcia Represented By Leonard Pena
Joint Debtor(s):
Antonio Garcia Represented By Leonard Pena
Movant(s):
Nationstar Mortgage, LLC. Represented By Michael Daniels Angie M Marth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FEDERAL NATIONAL MORTGAGE ASSOCIATION
vs DEBTOR(S)
Docket 65
Tentative Ruling for 9/18/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to provide an update regarding the LMM status, and any other matters relevant to this motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue to 9/18/18 at 10:00 a.m. to address the following issues. Appearances are not required on 8/7/18.
At the 5/22/18 hearing, this Court continued the matter for the debtors to complete the LMM Program (see Order granting motion to commence LMMP, dkt. 80). This Court has reviewed the debtors' filed status report (dkt. 82), which states that debtor is current with all adequate protection payments.
Nothing in this tentative ruling keeps the parties from alerting chambers of
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any wish to appear at the 8/7/18 hearing in order to inform this Court about any other issues pertaining to the underlying motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 75).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carlos Roberto Calderon Represented By Tamar Terzian
Joint Debtor(s):
Rosalva Calderon Represented By James T King Tamar Terzian
Movant(s):
Federal National Mortgage Represented By
Andrew David Goldberg
10:00 AM
Trustee(s):
Lisa B Singer Renee M Parker
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, NA
vs DEBTOR
Docket 28
Debtor(s):
Gerald Paul Asher Represented By Julie J Villalobos
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Application for fees and expenses [David M Goodrich, Chapter 7 Trustee]
Docket 41
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edwin E Galindo Represented By Britney L. Mark
Trustee(s):
David M Goodrich (TR) Pro Se
11:00 AM
Application for fees and expenses [Peter J. Maston, Chapter 7 Trustee]
Docket 40
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
George Loves, Inc. Represented By David S Hagen
Trustee(s):
Peter J Mastan (TR) Represented By Claire K Wu
11:00 AM
of Expenses
[Filed by Gumport/Mastan Attorneys for Ch. 7 Trustee]
Docket 37
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
George Loves, Inc. Represented By David S Hagen
Trustee(s):
Peter J Mastan (TR) Represented By Claire K Wu
11:00 AM
[Filed by Accountant for Chaper 7 Trustee]
Docket 38
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
George Loves, Inc. Represented By David S Hagen
Trustee(s):
Peter J Mastan (TR) Represented By Claire K Wu
11:00 AM
Application for fees and expenses [Brad D. Krasnoff, Chaper 7 Trustee]
Docket 284
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brian Lee Represented By
Christian T Kim
Trustee(s):
David A Gill (TR) Represented By John N Tedford Aaron E de Leest
11:00 AM
Docket 280
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brian Lee Represented By
Christian T Kim
Trustee(s):
David A Gill (TR) Represented By John N Tedford Aaron E de Leest
11:00 AM
Docket 278
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brian Lee Represented By
Christian T Kim
Trustee(s):
David A Gill (TR) Represented By John N Tedford Aaron E de Leest
11:00 AM
Docket 1
- NONE LISTED -
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
11:00 AM
and §521 and §524] or in the Alternative, for Turnover fr. 08/14/18
Docket 19
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lorena Nunez Represented By Hector Vega
Trustee(s):
Carolyn A Dye (TR) Pro Se
11:00 AM
fr. 9/16/14, 10/21/14, 11/18/14, 11/25/14, 12/16/14, 01/27/15, 2/3/15, 3/10/15, 5/12/15, 07/21/15, 9/8/15,
10/27/15, 11/17/15, 1/19/16, 2/23/16, 3/8/16, 04/26/16,
5/31/16, 7/5/16, 9/13/16, 11/8/16, 11/29/16, 2/7/17,
5/23/17, 9/12/17, 03/06/18
Docket 1
Tentative Ruling for 3/6/18:
Continue to 12/18/18 at 11:00 a.m. as a holding date, to be further continued for another 3 to 6 months once this Court's 2019 calendar is determined, for the reasons set forth in the Trustee's status report (dkt. 540). Appearances are not required on 9/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Continue to 9/18/18 at 11:00 a.m. for the reasons set forth in the Trustee's status report (dkt. 538). A brief status report from the Chapter 7 Trustee is due 9/4/18, and other parties may but need not join in or file their own status reports. Appearances are not required on 3/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
QTS, INC. Represented By
James R Selth Elaine Nguyen Daniel J Weintraub
Trustee(s):
Timothy Yoo (TR) Represented By Monica Y Kim Jeffrey S Kwong
11:00 AM
Adv#: 2:18-01218 John R. Lobherr, Incorporated v. Chyun
Docket 6
Grant for the reasons set forth in the motion (dkt. 6) and this Court's order (dkt. 39) overruling the debtor's objection to the plaintiff's claim. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sang Chyun Represented By
Donald E Iwuchuku
Defendant(s):
Sang Chyun Represented By
Donald E Iwuchuku
Plaintiff(s):
John R. Lobherr, Incorporated Represented By Stephen P Reider
11:00 AM
Trustee(s):
Robert P Goe Stephen Reider
Elissa Miller (TR) Pro Se
11:00 AM
Adv#: 2:18-01218 John R. Lobherr, Incorporated v. Chyun
U.S.C. Section 727(a)(5); and 5) For Denial of Discharge Pursuant to 11 U.S.C. Section 727(a)(8)
fr. 09/04/18
Docket 1
Continue to 10/16/18 at 11:00 a.m. for entry of a judgment (see tentative ruling for calendar no. 11, 9/18/18 at 11:00 a.m.). Appearances are not required on 9/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sang Chyun Represented By
Donald E Iwuchuku
Defendant(s):
Sang Chyun Pro Se
Plaintiff(s):
John R. Lobherr, Incorporated Represented By Stephen P Reider
11:00 AM
Trustee(s):
Robert P Goe
Elissa Miller (TR) Pro Se
11:00 AM
Adv#: 2:17-01174 Stardust Vacation Club and Americana Vacation Club v. MacMillan
fr. 5/2/17, 06/06/17, 8/22/17, 11/14/17, 01/30/18, 5/1/18, 6/26/18, 08/14/18
Docket 1
Tentative Ruling for 9/18/18:
Continue to 11/6/18 at 11:00 a.m., with a brief status report due 10/23/18 (unless this matter is mooted by this Court approving the parties' settlement). See dkt. 34. Appearances are not required on 9/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Set a deadline of 8/17/18 for the parties to file a corrected copy of their status report (adv. dkt. 31, which has illegible text at the top of p.2), and continue this status conference to 9/18/18 at 11:00 a.m., with a brief status report due 9/4/18 (unless this matter is mooted by this Court approving the parties' settlement). See adv. dkt. 31. Appearances are not required on 8/14/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Continue to 8/7/18 at 11:00 a.m., with a brief status report due 7/24/18 (unless this matter is mooted by this Court approving the parties' settlement). See dkt. 29 (status report). Appearances are not required on 6/26/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This court has reviewed the parties' joint status report (dkt. 27).
Mediation. The tentative ruling is to order mandatory mediation (again), with a deadline of 5/15/18 for the parties to lodge proposed mediation order (s).
Deadlines: This adversary proceeding has been pending since 2/24/17. Due to the parties' prior delays and an anticipated settlement the normal deadlines for completion of discovery and other matters have not been applied. The tentative ruling is to set the following deadlines, to run concurrent with the parties' mediation. The parties are cautioned that once the following deadlines have been established this Court is unlikely to be persuaded to amend them.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 9/3/18.
11:00 AM
Expert(s) - deadline for reports: 9/17/18.
Expert(s) - discovery cutoff (if different from above): 9/24/18. Dispositive motions to be heard no later than: 11/6/18.
Joint Status Report: 6/12/18.
Continued status conference: 6/26/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/11/17.
Pretrial conference: 11/27/18 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: 12/6/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 12/10/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the results of their mediation. In future, the parties are cautioned that they are required under the Local Bankruptcy Rules to file a status report.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
11:00 AM
appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Continue to 11/14/17 at 11:00 a.m. in view of the parties' mediation scheduled for 10/27/17 (adv. dkt. 18). Appearances are not required on 8/22/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 6/6/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 10) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
11:00 AM
Deadlines: This adversary proceeding has been pending since 2/24/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 7/21/17. Expert(s) - deadline for reports: 8/4/17.
Expert(s) - discovery cutoff (if different from above): 8/18/17. Dispositive motions to be heard no later than: 9/29/17.
Joint Status Report: 8/29/17.
Continued status conference: 9/12/17 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/11/17.
Pretrial conference: 10/17/17 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 10/20/17 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 10/25/17 at 9:00 a.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Stardust Vacation Club and Represented By Bruce Grego
11:00 AM
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
1:00 PM
Docket 219
Appearances required. There is no tentative ruling, but the parties should be prepared to address (1) whether any deficiencies in following the Local Bankruptcy Rules ("LBR") regarding notice of this hearing have caused any prejudice; and (2) whether this Court should reopen and then dismiss this case, or alternatively, issue an order to show cause ("OSC") or order other remedies for non-compliance with the parties' stipulation (dkt. 209) and the order approving it (dkt. 211).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rolando Verdecia Represented By Michael J Jaurigue Nam H. Le
Elaine Le Ryan A. Stubbe
1:00 PM
Joint Debtor(s):
Ivonne Verdecia Represented By Michael J Jaurigue Nam H. Le
Elaine Le Ryan A. Stubbe
1:00 PM
Docket 222
- NONE LISTED -
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
1:00 PM
Docket 33
Please see the tenative ruling for the Status Conference (calendar no. 4, 9/18/18 at 1:00 p.m.).
Debtor(s):
Motiv8 Investments, LLC Represented By Kevin Tang
1:00 PM
Docket 8
Tentative Ruling for 9/18/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 46) and other relevant documents.
Failure to Serve Bar Date Order (dkt. 25). The order directs the debtor to serve all parties in interest no later than 7/16/18 but no proof of service appears on the docket. Why not? The tentative ruling is to set a new bar date of 12/7/18 (the debtor should not serve any notice at this time; this Court will prepare and issue the order after the hearing).
Application to Employ Hector Perez/Advantage Realty Group (dkt. 33). There is no tentative ruling, but the parties should be prepared to address (1) the issues raised in the opposition by Crescent Capital Holding LLC (dkt. 45); (2) whether the debtor is seeking to employ Mr. Perez, or Advantage Realty Group, or both; and (3) the absence of Local Form 2014-1 (required by Judge Bason's posted procedures, available at www.cacb.uscourts.gov).
Deadlines/dates. This case was filed on 6/11/18.
Bar date: to be re-set see above.
Plan/Disclosure Statement*: TBD.
Continued status conference: 10/16/18 at 1:00 p.m., brief status report due 10/4/18
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Appearances required by counsel for the debtor and by the debtor itself.
Current issues. This Court has reviewed the debtor's status report (dkt. 18) and other relevant documents.
Status Report. Debtor used an old form of status report. Judge Bason's current posted procedures require the use of local form F 2081- 1.1.C11.STATUS.RPT. Counsel is directed to review Judge Bason's posted procedures and to use the appropriate form status report in future.
Motion for relief from automatic stay. There is no tentative ruling, but the debtor and Crescent Capital Holding LLC should be prepared to address the issues raised in the motion (dkt. 17) and debtor's response (dkt. 21) regarding the Las Flores property, including the previous grant of "in rem" relief against the property, and whether the debtor has provided sufficient evidence of insurance on the property.
Deadlines/dates. This case was filed on 6/11/18.
Bar date: 9/14/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/28/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 9/18/18 at 1:00 p.m., brief status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Motiv8 Investments, LLC Represented By Kevin Tang
1:00 PM
Docket 21
Please see the tenative ruling for the Status Conference (calendar no. 6, 9/18/18 at 1:00 p.m.).
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
1:00 PM
Docket 7
Tentative Ruling for 9/18/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Court has reviewed the debtor's filed status report (dkt. 42) and the other filed documents in this case.
Motion of U.S. Trustee ("UST") to dismiss or convert (dkt. 21). The debtor claims to have come into compliance (dkt. 41). Does the UST have any outstanding compliance issues?
Budget motion (dkt. 15) and supplemental declaration of non- debtor spouse Jose M. Juarez (dkt. 37). Grant on a final basis. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Cash collateral motion (dkt. 14, 16). The adopted tentative ruling for the 8/14/18 hearing (reproduced at calendar no. 7, 9/18/18 at 1:00 p.m.) directed the debtor to file an order granting the motion on an interim basis. No such order has been lodged. Why not? Subject to a satisfactory answer, the tentative ruling is to grant the motion on a final basis, on the same terms as it was granted on an interim basis. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 7/11/18.
Bar date: 10/29/18 (dkt. 26, timely served dkt. 28)
Plan/Disclosure Statement*: TBD
Continued status conference: 10/16/18 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has reviewed the debtor's filed status report (dkt. 17) and the other filed documents in this case.
Budget motion (dkt. 15). Grant on an interim basis, with a final hearing concurrent with the continued status conference (see below), and a deadline of 8/21/18 to file declaration(s) regarding the income of the debtor's spouse (see below). Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Debtor's spouse's income. The debtor's bankruptcy Schedule I reports that the debtor's spouse is a self-employed construction contractor, but that the spouse only earns $1,500/mo. in net income. Dkt. 1, at PDF p.32, line 8a. This Court takes judicial notice that there is considerable construction activity in this geographic area. Why is that income not higher?
In addition, there is no attached statement showing gross income, expenses, and the calculation of net income. That is contrary to the instructions for line 8a, and to this Court's order that for reporting purposes any spouse is to be treated as equivalent to the debtor (dkt. 6, para.3).
Deadlines/dates. This case was filed on 7/11/18.
Bar date: 10/29/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 9/18/18 at 1:00 p.m., brief status report due 9/4/18.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
1:00 PM
fr. 08/14/18
Docket 14
Tentative Ruling for 9/18/18:
Please see the tenative ruling for the Status Conference (calendar no. 6, 9/18/18 at 1:00 p.m.).
Tentative Ruling for 8/14/18:
Appearances required.
Realistic budget? The cash collateral motion (dkt. 14) includes only
$100/mo. for maintenance, and nothing for pest control, utilities, repairs, etc. Is the budget realistic?
Local Form F 4001-2 (dkt. 16). Item "(ii)" states that the debtor is offering replacement lien "in excess of the dollar amount of the lien on cash collateral as of the petition date." What does the debtor mean by that? Is that appropriate?
Subject to satisfactory answers to the foregoing questions, the tentative ruling is to grant the motion on an interim basis, subject to the conditions set forth below, with a final hearing on 9/18/18 at 1:00 p.m., and a deadline of 8/20/18 for the debtor to file and serve a notice of the final hearing.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form F2081- 1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation.
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Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase
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that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506 (c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
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In the event of any disputes regarding the rulings in this order, the
parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
Movant(s):
Patricia Ann Theus Represented By Onyinye N Anyama
1:00 PM
Sec. 1115
fr. 08/14/18
Docket 15
Tentative Ruling for 9/18/18:
Please see the tenative ruling for the Status Conference (calendar no. 6, 9/18/18 at 1:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the status conference (calendar no. 3, 8/14/18 at 1:00 p.m.).
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
Movant(s):
Patricia Ann Theus Represented By Onyinye N Anyama
1:00 PM
Docket 1
Tentative Ruling for 9/18/18:
Dismiss this case, as contemplated by the debtor (dkt. 36, 37), and pursuant to this Court's prior order and notice (dkt. 6, 12), with a judgment for any unpaid quarterly fees owed to the Office of the United States Trustee.
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue to the date and time stated below in view of the debtor's status report (dkt. 31). Appearances are not required on 8/7/18.
Current issues. This Court has reviewed debtor's status report (dkt. 31), and other relevant pleadings and has no issues to raise sua sponte
Deadlines/dates. This case was filed on 4/27/18.
Bar date: 8/3/18 (timely served, dkt. 19, 25)
Plan/Disclosure Statement*: file by 8/27/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
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Continued status conference: 9/18/18 at 1:00 p.m., brief status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/28/18:
Appearances required by counsel for the debtor and by the debtor herself.
Current issues. This Court has no issues to raise sua sponte. The debtor should be prepared to discuss how she plans to reduce her monthly expenses to generate sufficient net monthly income to fund a plan.
Deadlines/dates. This case was filed on 4/27/18.
Bar date: 8/3/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/27/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/7/18 at 1:00 p.m., brief status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Judith L. Tallarico Represented By Lewis R Landau
1:00 PM
Docket 9
Tentative Ruling for 9/18/18:
Continue as set forth below. Appearances are not required on 9/18/18.
Current issues. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (timely served, dkt. 24).
Plan/Disclosure Statement*: TBD
Continued status conference: 10/16/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Court has reviewed the docket, the debtor's amended schedules (dkt. 33), and monthly operating report no. 1 (dkt. 20, for mo. ending 6/30/18). What is the $660 "miscellaneous expense" reported on
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p.5? Why was that not explained in the MOR?
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (timely served, dkt. 24).
Plan/Disclosure Statement*: TBD
Continued status conference: 9/18/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 7/17/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has reviewed the debtor's filed status report (dkt. 17) and the other filed documents in this case.
Secured claims. Why does the debtor's bankruptcy Schedule D (dkt. 18 at PDF p.11) list $0 in secured claims (not even a disputed claim?) even though the status report (dkt. 17) states that the case was filed to stop foreclosure? How can creditor and this Court rely on the accuracy of the bankruptcy schedules in view of such inconsistency?
Income. The debtor's bankruptcy Schedule I (dkt. 18 at PDF pp.19- 20) lists a total of $100/mo. in income taxes, medicare and social security. It lists $0 for net income from operating a business (line 8a) despite listing multiple businesses with alleged income: "YB Design, Inc.," "Management of Rabenu Enterprises, LLC," "Babysitting services," and "Cosmetic Sales." It fails to comply with the instructions in line 8a to "Attach a statement for each
... business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." The debtor appears to be
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ignoring the requirements to provide disclosure as to his own income and expenses and, under this Court's order (dkt. 9, para.3), to provide equal disclosure with respect to his spouse and their businesses. How can creditors and this Court rely on the accuracy of the bankruptcy schedules and future compliance with orders of this Court in view of such non-compliance?
Deadline for compliance. The tentative ruling is to set a deadline of 7/31/18 for the debtor to file amended bankruptcy schedules correcting not only the foregoing deficiencies that this Court has identified but also any other deficiencies that the debtor and his spouse and the debtor's counsel identify after carefully reviewing the documents that the debtor has filed. If in future this Court discovers other non-compliance with the debtor's obligations to provide accurate disclosures and to comply with this Court's orders, this Court may order the dismissal or conversion of this bankruptcy case, or other remedies.
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 8/14/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
This court anticipates posting a tentative ruling at a later time.
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Debtor(s):
Benjamin Saeedian Represented By Raymond H. Aver
1:00 PM
US BANK N.A.
vs DEBTOR
Docket 41
Tentative Ruling for 8/7/18:
Please see the tentative ruling for the Status Conference (calendar no. 12, 9/18/18 at 1:00 p.m.).
Tentative Ruling for 8/7/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This matter has been continued a number of times at the parties' request to allow time to negotiate the terms of a stay-current adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
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At the hearing on 5/22/18, this Court was persuaded to continue this hearing to this date at Movant's request to allow time for the parties to negotiate a stay-current adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Deny for the reasons stated in the debtor's response (dkt. 48). At this early stage of the case it is premature to conclude that the debtor cannot propose a plan of reorganization that has a reasonable possibility of being confirmed within a reasonable time. Appearances are not required.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's response (dkt. 48)
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
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Debtor(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
Movant(s):
U.S. Bank National Association Represented By Cassandra J Richey
1:00 PM
Docket 9
Tentative Ruling for 9/18/18:
Continue to the date and time set forth below. Appearances are not required on 9/18/18.
Current issues.
Motion for relief from automatic stay (dkt. 41). Deny without prejudice, for the reasons stated in the debtor's response (dkt. 48) and based on the representations in the debtor's status report (dkt. 60). Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Dates/Deadlines.
Bar date: 6/15/18 (timely served, dkt. 26, 32)
Plan/Disclosure Statement*: file by 12/4/18 (see dkt. 55, p.4:25) using the forms required by Judge Bason.
Continued status conference: 12/11/18 at 1:00 p.m. Brief status report due 12/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
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Continue to the date and time set forth below. Appearances are not required on 7/17/18.
Current issues. This Cout has reviewed debtor's status report (dkt. 55) and other relevant pleadings. This Court does not have any issues to raise sua sponte.
Dates/Deadlines.
Bar date: 6/15/18 (timely served, dkt. 26, 32)
Plan/Disclosure Statement*: TBD. This Court is aware that debtor has requested a somewhat distant deadline (dkt. 55, p. 4). This Court may or may not be persuaded to grant that deadline at the continued status conference.
Continued status conference: 9/18/18 at 1:00 p.m. Brief status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Appearances are not required on 5/22/18.
Current issues.
This court does not have any issues to raise sua sponte.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (timely served, dkt. 26, 32).
Plan/Disclosure Statement*: This court will discuss setting a deadline for the filing of a draft plan/disclosure statement at the next status conference.
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Continued status conference: 7/17/18 at 1:00 p.m. Brief status report due 7/3/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget Motion (dkt. 21). This Court has reviewed Debtor's Supplemental Declaration in Support of the Budget Motion (dkt. 34). Although that declaration addresses many of the concerns raised by this Court and by Strategic Acquisitions, Inc. (dkt. 23), the debtor has failed to provide historical monthly profit and loss statements from the period from 1/1/18 through 3/31/18 as required by this Court's order (dkt. 27, para. 5.a.). The parties should be prepared to address what remedy this Court should impose.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (timely served, dkt. 26, 32).
Plan/Disclosure Statement*: In view of the debtor's declaration about her current and future projected income, the tentative ruling is to vacate the prior deadline to file these documents, and set a new deadline at a future status conference, with the caveat that if the debtor fails to show sufficient diligence in obtaining employment and/or if the estate suffers any substantial losses then this Court might have to dismiss or
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convert this case.
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor and by the debtor herself.
Current issues. This Court has reviewed the debtor's status report (dkt. 19), the response (dkt. 23) filed by creditor Strategic Acquisitions, Inc. ("Strategic"), and the other filed documents and records in this case.
Prior failed case. The debtor's husband's prior case (no. 17-bk- 19071-NB) was a chapter 13 case that was dismissed on 10/13/17 with a 180-day bar to re-filing for failure to make plan payments or appear at the meeting of creditors (11 U.S.C. 341(a)).
Budget Motion (dkt. 21). First, as Strategic points out, the debtor's bankruptcy Schedule I, line 8a, lists $6,220/mo. of net income from "rental property and from operating a business, profession, or farm" but fails to follow the instructions to "[a]ttach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total net monthly income." In addition, as Strategic points out, the debtor may be failing to account for the payment of real property taxes and perhaps also income taxes, and therefore it is not at all clear how the debtor will be able to fund any plan of reorganization.
The tentative ruling is to set a deadline of 4/17/18 for the debtor to file declaration(s) (i) attaching the statement(s) required by the line 8a instructions, (ii) providing complete explanations of any other sources of income (e.g., how long does the debtor anticipate continuing to receive
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disability payments? does the debtor ancticipate returning to employment, and if so, when?), (iii) explaining whether the debtor is accounting for real estate taxes and income taxes, (iv) explaining how the debtor anticipates generating sufficient income to fund a plan of reorganization, and (v) attaching historical monthly accounts for the period of one year prepetition through 3/31/18.
Second, bankruptcy Schedule J (attached to the budget motion), lines 17c and 17d, list payments to Strategic of $1,750/mo. and to Ropers Majeski of $500/mo. The tentative ruling is to treat those payments as adequate protection payments on account of claims that appear to be secured claims, conditioned on return of such payments in the event that such security interests or claims are avoided or otherwise disallowed.
Third, notice of the motion and the deadline for objections is inadequate. The proof of service fails to attach a service list of creditors, and the debtor checked the box directing creditors to file any oppositions within 14 days' from the date of the proof of service (3/27/18), which would be the date of this hearing. Nevertheless, despite the lack of adequate service or notice, the tentative ruling is that on the present record it appears that it would be more prejudicial to creditors to prevent the debtors from making their proposed expenditures than to permit those expenditures, so the tentative ruling is to grant the budget motion on an interim basis, subject to any objections at a continued hearing simultaneous with the continued status conference date set forth below. This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006, Fed. R. Bankr. P.), but that date is conditioned upon the debtor serving the motion on the entire creditor matrix the day after the current hearing date.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: File by 6/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time). This Court is aware that the debtor has requested a much later deadline (dkt. 19, p. 5), but this Court is not aware of any reason why so much time is needed. The debtor should be negotiating with secured creditors and other key constituencies
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already.
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
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fr. 4/12/16, 04/26/16, 05/17/16, 8/2/16, 9/6/16, 11/8/16, 11/29/16, 1/17/17, 1/31/17, 03/21/17, 4/11/17, 06/13/17,
9/19/17, 11/14/17, 02/13/18, 7/10/18
Docket 271
Tentative Ruling for 9/18/18:
Continue to 12/18/18 at 1:00 p.m. with a likely continuance for an additional three months once this Court's 2019 calendar is set. See dkt. 300.
Appearances are not required on 9/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Continue to 9/18/18 at 1:00 p.m. Appearances are not required on 7/10/18.
Reasons: The tentative ruling is that the debtor's anticipated lack of distribution from the sale of the Tchoupitoulas property (per the latest post- confirmation status report, dkt. 290, para.5) is consistent with the terms of the plan (dkt. 227), disclosure statement (dkt. 228, including Ex.H, n. N15), and confirmation order (dkt. 253). The tentative ruling is also that, although the debtor anticipates that the sale might occur on or before 8/13/18, and that other matters might not require a status conference for several months (dkt. 290, para. 8), nevertheless in this Court's experience issues tend to arise in this and other cases that make it advisable not to continue status conferences out quite so far. Accordingly, the tentative ruling is to continue the status conference to the date and time set forth above.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Continue to 7/10/18 at 1:00 p.m. as suggested in the debtor's latest post- confirmation status report (dkt. 272, para. 10). Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Continue to 2/13/18 at 1:00 p.m. Appearances are not required on 11/14/17.
Reasons: The debtor's post-confirmation status report (dkt. 270) appears to show sufficient progress and compliance with the confirmed Plan (dkt. 227, confirmed by order at dkt. 253). Therefore the tentative ruling is to continue this status conference to allow the parties more time to reach a resolution with regards to the Tchoupitoulas property.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 9/19/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Continuance. The debtor's post-confirmation status report (dkt. 264) appears to show sufficient progress and compliance with the confirmed Plan (dkt. 227, confirmed by order at dkt. 253). Therefore the tentative ruling is to continue this status conference to 11/14/17 at 1:00 p.m.
Request for early discharge. The same status report (dkt. 264, para. 7-10) suggests that the pendency of this case is impeding the debtor's ability to finish reorganizing his finances, and therefore the debtor may seek to close the case, but he is concerned that creditors may misinterpret that as permission to pursue him for prepetition debts (beyond enforcement of any such debts that survive in his Plan obligations) and therefore he may seek to obtain an early discharge of any debts that are not being paid under the Plan. That anticipated request is not presently before this court, but in the context of this status conference it is appropriate to address any standing policies of this court and any procedures that should be established regarding any such request.
Under the terms of the Bankruptcy Code, incorporated into the confirmed Plan (dkt. 227, p.4, Art.IV.A.) (see also Disclosure Statement, dkt. 228, p.2, summarizing same), without modification by the confirmation order (dkt. 253), there are only limited circumstances in which the debtor can obtain a discharge prior to the 84 month term for completion of payments to general unsecured creditors:
IV.A. Pursuant to § 1141(d)(5), Debtor will not be discharged
from any debts unless and until (1) Debtor completes all payments “under” the Plan and obtains an order of the court granting a discharge (§ 1141(d)(5)(A)&(C)) – for purposes of this Plan payments that extend beyond the Plan Term stated in Exhibit A are not considered payments “under” the Plan (e.g., if the Plan Term is 5 years then Debtor will be eligible for a discharge under this clause if 5 years of payments are made, but the debtor will remain
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obligated on obligations that extend beyond the Plan Term, such as a 30-year mortgage); (2) the court grants a limited (“hardship”) discharge (§ 1141(d)(5)(B)&(C)); or (3) the court “orders otherwise for cause” (§ 1141(d)(5)(A)&(C)). [Dkt. 227, p.4 (emphasis added)]
The debtor should be prepared to address whether he will pursue his stated intent to seek an early discharge, and if so on what grounds, and pursuant to what procedures.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 6/13/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 227) and disclosure statement (dkt. 228) & errata (dkt. 246). The parties should be prepared to address the objection by CitiMorgage, Inc. (dkt. 237) and the debtor's responses (dkt. 242, 250) as well as the ballot summary (dkt. 243) and whether the SEC has been or needs to be served (see dkt. 230 at p.1:23-24, and dkt. 236).
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Continued status conference: TBD
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 4/11/17:
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Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Creditor CitiMortgage's objection (dkt. 217). As creditor CitiMortgage points out in its objection, its treatment under the plan is not properly specified in Exhibit A1. In addition, CitiMortgage refers to a possible stipulation. What is the status of this stipulation and/or any negotiations between the debtor and CitiMortgage?
Amended Chapter 11 Plan and Disclosure Statement (dkt. 183- 186). This court will review the other minor issues with these documents orally at the hearing.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: 4/13/17 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 5/9/17 at 1:00 p.m. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/21/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status of financing. The debtor should be prepared to address the
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status of his attempts to obtain financing (dkt. 212) and the effects on this case.
Chapter 11 Plan and Disclosure Statement. The parties should be prepared to address whether the debtor has a viable alternative to his previously filed plan and disclosure statement (dkt. 185-186), and alternatively whether he intends to proceed under those documents and whether that is viable.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: to be addressed at the hearing.
Continued status conference: 4/25/17 at 1:00 p.m. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/31/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Financing transaction (dkt. 191) and Amended Chapter 11 Plan and Disclosure Statement (dkt. 183-186). The debtor should be prepared to address how the proposed financing will change the plan documents.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: this court anticipates setting the following deadlines: 2/10/17 to file (NOT SERVE - except on the
U.S. Trustee) any revised versions of these documents, to be discussed at the status conference, and to lodge a proposed order (on the form posted on Judge Bason's portion of the court's web page) setting a combined hearing for 4/25/17 at 1:00 p.m. on final approval of the disclosure statement and
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confirmation of the plan.
Continued status conference: 2/7/17 at 1:00 p.m. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/17/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Amended Chapter 11 Plan and Disclosure Statement (dkt. 183-186).
This court will review minor issues with these documents orally at the hearing.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: this court anticipates setting the following deadlines: 1/19/17 to file (NOT SERVE - except on the
U.S. Trustee) any revised versions of these documents, to be discussed at the status conference, and to lodge a proposed order (on the form posted on Judge Bason's portion of the court's web page) setting a combined hearing for 3/21/17 at 1:00 p.m. on final approval of the disclosure statement and confirmation of the plan.
Continued status conference: Same date and time and combined disclosure statement/plan hearing. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor but telephonic appearances
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are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Amended Chapter 11 Plan and Disclosure Statement (dkt. 174, 175, 177). This court will review various issues with these documents orally at the hearing.
Deadlines/dates. This case was filed on 2/17/16.
(1) Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement: this court anticipates setting the following deadlines: 12/19/17 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference.
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 1/17/17 at 1:00 p.m. No written status report is required.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/8/16:
Continue to 11/29/16 at 2:00 p.m. for the reasons stated in the debtor's pending motion to extend time for filing plan and disclosure statement and extend exclusivity (dkt. 166). Appearances are not required on 11/8/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 9/6/16:
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Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issue: objection to AOK claim
This court has reviewed the debtor's objection (dkt. 121) to proof of claim 9-1, filed by AOK Brothers, LLC (AOK); AOK's opposition (dkt. 147); and the debtor's reply to the objection (dkt. 150).
Default interest
The parties do not appear to disagree on the legal standards. The debtor does not (at this time) seek to disallow default interest pursuant to any "cure" concept under bankruptcy law. Cf., e.g., GECC v. Future Media, 547 F.3d 956 (9th Cir. 2008); In re Entz-White Lumber and Supply, Inc., 850 F.2d 1338 (9th Cir. 1988). Rather, the debtor relies on California law. See generally In re Kord Enterprises II, 139 F.3d 684, 687 (9th Cir. 1998).
As stated by the California Supreme Court, the analysis under California law is to determine whether default rates of interest are either permissible liquidated damages or an impermissible penalty:
[California Civil Code] Section 1671 authorizes the assessment of agreed-upon and anticipated damages only when the fixing of the actual damages which would be sustained upon a breach would be "impracticable" or "extremely difficult." Where, as here, the issue is presented on admitted facts it is one of law and must be examined from the position of the parties at the time the contract was entered into. The party seeking to rely on a liquidated damages clause bears the burden of proof. [¶] "The validity of a clause for liquidated damages requires that the parties to the contract 'agree therein upon an amount which shall be presumed to be the amount of damages sustained by a breach thereof....'" (Civ. Code, § 1671.) This amount must represent the result of a reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be sustained. [Garrett v. Coast & Southern Fed. Sav. & Loan Assn., 9 Cal.3d 731 (1973) (citations and some internal quotation marks omitted, emphasis added). See also Ridgley v.
Topa Thrift & Loan Assn., 17 Cal. 4th 970, 981 (Cal. 1998).]
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In this instance, AOK has not met its burden to establish that the
default rate of interest is permissible under California law. A five percent (5%) interest rate has not been shown to be a reasonable estimate of liquidated damages, given the $1.3 million equity cushion AOK has in the property. In addition and alternatively, there is no showing of any anticipated damages - beyond the compensation that AOK already can claim through late charges, ongoing interest at the non-default rate, and other things such as attorney fees as set forth below – let alone evidence that the parties made a reasonable endeavor to estimate any such additional losses.
The debtor estimates that AOK's proof of claim includes at least
$15,000 of default interest. The tentative ruling is to set a deadline of 9/20/16 for AOK to file an amended proof of claim that shows the calculation of default interest, and a deadline of 9/27/16 for the debtor to lodge a proposed order, with a copy of this tentative ruling attached, that disallows all default interest (including not just whatever AOK asserts as of the petition date but also any future claim for default interest).
Attorney fees
The debtor's motion requests that AOK's claim be reduced by
$34,221.46 for unreasonable and unnecessary attorney's fees incurred by AOK's counsel. The tentative ruling is to disallow a portion of those fees as set forth below.
The debtor is correct that the loan documents contain confusing provisions regarding attorney fees. But the tentative ruling is that the debtor is incorrect in arguing (dkt. 121, p.5:27-28) that a notice of acceleration or similar predicates were required before he had any obligation to pay AOK's attorney fees.
Some loan document clauses require notices of acceleration or similar predicates
On the one hand, several clauses support the debtor's reading that AOK was required to send a notice of acceleration (or similar predicates) before being entitled to any attorney fees.
The promissory note has a section (section 4.D) providing that "[i]f" immediate full payment is required (acceleration, at AOK's option upon default) then AOK will have the right to be paid its reasonable attorney fees (dkt. 121, Ex.1, at PDF p.30, emphasis added).
The deed of trust ("DOT") provides (section 17) that if
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a notice of default is provided and the breach is not timely cured then AOK shall be entitled to collect all reasonable attorney fees "incurred in pursuing the remedies provided in this paragraph 17" (power of sale and other remedies permitted by applicable law). Dkt. 121, Ex.1, at PDF p.48.
The DOT's more general provision regarding protection of AOK's security (section 7) states that if debtor fails to perform then "upon notice to [debtor]" (dkt. 121, Ex.1, at PDF p.46, emphasis added) AOK may disburse sums and take actions necessary to protect its interests including disbursement of reasonable attorney fees.
An addendum to the promissory note (id., at PDF p.35, the "Note Addendum") and a rider to the DOT (dkt. 121, Ex.1, at PDF p.55, the "DOT Rider") both provide that "[i]n the event that" there is a payment default and AOK permits the debtor "to cure the default," then the debtor shall pay AOK "all reasonable attorney fees and costs incurred by [AOK] originating from this default and the cure thereof." (Emphasis added.)
The tentative ruling is that the debtor is correct that his "personal guaranty" of his own obligation is a nullity, so its attorney fee clause (dkt. 147, Ex.B, section 6) is of no force and effect.
Other clauses require the debtor to pay AOK's attorney fees reasonably necessary to bring any late payments current
On the other hand, the Note Addendum and DOT Rider also provide that, if AOK has not received the full amount of any monthly payment by the end of ten calendar days after it is due, the debtor "will promptly pay to [AOK] all costs incurred by [it], including, but not limited to, attorneys' fees reasonably necessary to bring any late payments (overdue payments) current." Dkt. 121, Ex.1, at PDF pp. 35 & 55 (emphasis added). No notice of acceleration or other prerequisite is required for this obligation.
The debtor (dkt. 121, pp. 7:23-8:11 and 8:17-9:3) cites authority that such clauses must be construed narrowly against the lender, and argues that in this light AOK's bankruptcy litigation was not "reasonably necessary to bring any late payments (overdue payments) current." Instead, the debtor argues, AOK's litigation was bankruptcy-related: opposing the debtor's use of cash collateral; seeking to convert this case to one under chapter 7 of the Bankruptcy Code; opposing the debtor's motion to extend the exclusive period in which only he may propose a plan of reorganization; etc.
It is true that the decisions cited by the debtor construe such clauses strictly against the lender. See dkt. 121, p.8:1-11 (citing cases); and see,
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e.g., In re Cukierman, 265 F.3d 846, 852 (9th Cir. 2001); In re Westside Print Works, 180 B.R. 557 (9th Cir. BAP 1995). But a fair reading of the loan documents, even construed against AOK, is that it was "reasonably necessary" to pay attorneys to engage in bankruptcy litigation in order to attempt to "bring any late payments" current. In fact, the whole point of bankruptcy reorganization (by this debtor and most debtors) is to attempt to defer or restructure financial obligations; and in opposing such attempts the creditor is attempting to "bring any late payments" current, as nearly as possible given the constraints of the bankruptcy system on creditors' exercise of their remedies.
Alternatively, even supposing that there were sufficient ambiguity about the loan documents to reach a different conclusion, that ambiguity would be resolved by the letter signed by the debtor (dkt. 147, Ex.E) confirmed that he agrees to pay a late fee "in addition to any legal fees [AOK] incurs in connection with collecting any payment on my loan." Again, a fair reading of this document is that "collecting" payments includes filing a claim in a bankruptcy case, opposing the debtor's attempts to defer or reduce payments, and otherwise engaging in bankruptcy litigation.
For the foregoing reasons, AOK is owed its reasonable attorney fees.
The remaining question is what attorney fees were reasonable.
Reasonableness of AOK's attorney fees
The debtor is correct that, at least on the present record, AOK appears to be greatly oversecured, so much of its litigation was unnecessary to protect its interests and doomed to fail from the outset. In addition, as this Bankruptcy Court has noted before on the record, many of AOK's arguments lacked a sufficient foundation.
On the other hand, as this Bankruptcy Court previously has also observed, the debtor has been sloppy in some aspects of his case management – such as failing to recognize that AOK has an interest in cash collateral; or failing to provide adequate notice to AOK. In addition, the debtor's sloppiness and tendency to overstate his arguments justify greater involvement by AOK than typically might be required for a creditor protected by a substantial equity cushion.
This Bankruptcy Court has taken these things into consideration in reviewing AOK's daily timesheets. That review has been hampered by the fact that AOK's timesheets do not comply with the local rules and guidelines – for example, time entries are "lumped" together, and they do not often identify
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the precise issues addressed (e.g., the subjects of telephone conferences generally are not described). Nevertheless, this Bankruptcy Court has sufficient familiarity with the filed pleadings and records in this case, as well as the approximate amount of fees that normally would be incurred in cases of this sort, to be able to rule on this record. In addition, it does not appear that any party's interests would be served by the expense and delay of further briefing.
In view of the foregoing, the tentative ruling is to reduce AOK's legal fees to date by $14,000.00.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement*: 9/27/16 deadline to file (NOT SERVE, except on the US Trustee, AOK, and any other party requesting special notice) a draft plan and draft disclosure statement on the forms required by Judge Bason.*
Continued status conference: 10/18/16 at 2:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/6/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 8/2/16:
Continue to 9/6/16 at 2:00 p.m. to address the following issues. Appearances are not required on 8/2/16.
On 7/19/16, this Court held a hearing on the debtor's motion to extend exclusivity. At that hearing, this Court excerced its inherent authority to manage its docket and determined that it was appropriate to continue this matter so that it is held concurrently with the debtor's objection to AOK Brother's claim.
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 5/17/16:
Continue to 6/21/16 at 1:00 p.m. Appearances are not required on 5/17/16.
Current issues
Cash collateral motion. Grant (please see the tentative ruling for matter number 5, 5/17/16 at 1:00 p.m. for this Court's reasoning regarding the debtor's cash collateral motion).
Properties. The tentative ruling is that the debtor has provided an adequate status report (dkt. 81), for present purposes, regarding the two properties as to which there appears to be some confusion regarding ownership: (i) 5255 Tchoupitoulas St., New Orleans Property and (ii) 3324 Octavia, New Orleans, Lousiana.
Claim objections. Once AOK Brothers has filed its proof of claim, and the debtor has filed his objection, this Court will address whether to make preliminary rulings before or after directing the parties to mandatory mediation (note: Judge Bason's policy is to order mediation before one of the volunteer mediators, not a Bankruptcy Judge).
Disclosure statement notice period. The debtor is correct (dkt. 81, para. 25) that the correct period is 42 days (the local rule is outdated and is in the process of being revised).
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement*: file by 9/5/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: Continue as set forth above. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/17/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 4/26/16:
Deny the motion of AOK Brothers, LLC ("AOK") to dismiss or for other remedies (dkt. 51), and set a continued status conference, all as further set forth below. Appearances are not required.
Current issues.
Motion to dismiss etc. (dkt. 51). Deny the motion without prejudice to renewing it at a later date, if sufficient cause exists.
Proposed order: The debtor is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Reasons for denial:
Motion and opposition. The crux of AOK's motion is that cause exists under 11 USC 1112(b)(4) to convert or dismiss this case, and alternatively under 11 USC 1104, to appoint a chapter 11 trustee based on the debtor's alleged "gross mismanagement of the estate" and his "unauthorized use of cash collateral" that allegedly was "substantially harmful to 1 or more creditors[.]" 11 USC 1112(b)(4)(B) & (D). (In its reply (dkt. 65), AOK raises a number of additional issues allegedly supporting such relief.)
On the one hand this Court is somewhat concerned about (A) the debtor's (apparently inadvertent) use of cash collateral without authorization and (slight) delay in seeking such authorization once he was alerted to the assignment of rents issue (see dkt. 39), (B) his filing of this case in the wrong division of this district (see dkt. 19, 21), (C) his refusal to communicate in writing with AOK's counsel except in limited ways, (D) some vagueness regarding the assets and liabilities of the bankruptcy estate, (E) the prior bankruptcies affecting the property on which AOK has a lien, and (F) AOK's other allegations. Nevertheless, this Court is not persuaded based on the
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current record that there has been anything remotely approaching "gross" mismanagement of this estate or that the duration and nature of the use of cash collateral caused any "substantial" harm (if there was any harm at all) to any creditors, including AOK.
There is no evidence that the cash collateral was used for anything other than legitimate purposes. One such use has been paying liens, including tendering payments to AOK at an interest rate that is prima facie within a reasonable range for adequate protection of AOK's interest (and AOK has not rebutted that prima facie showing). Another use of cash collateral is to maintain the subject property (see dkt. 40, budget at pp. 4-6). AOK has not identified any harm at all, let alone "substantial" harm, from this use of cash collateral.
AOK's reply. AOK raises a number of new issues in its reply. That is procedurally improper and should be disregarded. See LBR 9013-1 (g)(1).
Alternatively and additionally, these new issues are not sufficient to warrant conversion, dismissal, or appointment of a chapter 11 trustee. It is true that, in general, a debtor has a fiduciary obligation to make disclosures, conduct investigations, and take actions regarding liabilities and assets, including such matters as claims objections and potential avoidance actions. If this bankruptcy estate turns out to be insolvent, and if the other facts and circumstances warrant, then the debtor might have to consider recovering the funds that were used to pay for his son's legal fees, and in any event he may have to sort out his interests in certain real property and in the law firm with his wife. But at this early stage AOK has not established that the debtor is shirking any such duties at all.
The debtor has represented that he anticipates a 100% payment to creditors, and he is contemplating a sale or refinance of at least one property, all of which makes it likely that any pursuit of avoidance actions would be premature and possibly a waste of time and resources. AOK's secured claim appears to be adequately protected (as noted above).
Of course, AOK is not required to accept the debtor's assertions at face value, it can elect to do its own due diligence and otherwise protect its interests, and presumably (although this issue has not been briefed) it may be entitled to reimbursement under the loan documents and applicable law in some dollar amount for a reasonable expenditure of attorney fees in pursuit of those things. But at this early stage of this case AOK has not come close to
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showing any substantial basis for the extreme remedies of conversion, dismissal, or appointment of a chapter 11 trustee.
Turning to another example, it is true that the California ethical rules provide that "[w]hile representing a client" a member of the bar shall not communicate with a party whom the member "knows" to be represented by another lawyer in the matter (without that lawyer's consent). See Reply (dkt. 65) p.8:10-14 (quoting Rule 2-100). AOK has not cited legal authority that the debtor, representing himself, is "representing a client" within the meaning of the rule. In addition, the debtor has denied having the requisite knowledge of the representation, and AOK has not presented any contrary evidence.
Moreover, supposing for the sake of discussion that AOK could show an ethical violation, it has not cited any authority that this would be sufficient for conversion, dismissal, or appointment of a chapter 11 trustee. This Court does not condone the alleged nature and tone of the communications (see Nelson Decl., dkt. 65, at PDF pp. 11-12), but if those were proven and amounted to actual ethical violations there would be separate remedies that would be more closely tailored to any actual wrongdoing, as opposed to sweeping remedies such as dismissal that may harm all creditors (and that might unduly punish even a debtor who has violated an ethical rule).
The remaining issues raised in AOK's reply appear to be most appropriately resolved through other means, such as a claim objection, consideration of a draft disclosure statement and plan, or the usual process of oversight by the Office of the United States Trustee ("UST"). For example, having reviewed the record in this case (including the transcript from the hearing on 4/12/16), it does not appear that this Court ordered the debtor to file an amended bankruptcy Schedule I, contrary to AOK's assertions in its reply. It is true that the UST and the debtor discussed possible amendments to the bankruptcy schedules at a prior hearing, but this Court left that in the first instance to the discretion of the debtor (under the eye of the UST) and any purported lack of accuracy will only be appropriate for this Court to address if later developments show that the debtor abused that discretion.
Debtor's supplemental opposition (dkt.68). The debtor's supplemental opposition is unauthorized and therefore, like the new arguments in the reply, need not be addressed. In addition and alternatively, this Court need not consider the factual allegations in that document (largly concerning the alleged ethical violation) because this Court is not persuaded by the reply in any event (for the reasons set forth above).
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Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (timely served, dkt. 58, 67).
Plan/Disclosure Statement*: file by 9/5/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 5/17/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/12/16:
Appearances required by the debtor in person and any counsel for the debtor.
Current issues.
Status report. This Court has reviewed the debtor's timely filed status report (dkt. 47).
Regarding the debtor's request to file an explanation of the facts that gave rise to this case under seal, this Court requests that the U.S. Trustee state whether it would oppose such request and whether a written motion should be required.
In addition, the debtor should address what is meant by stating, with respect to possible sale procedures (dkt. 47, p.5:25-27), "This depends on how Court views New Orleans property."
Employment of a real estate professional. When does this debtor anticipate filing a motion to employ a real estate professional to sell the one
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New Orleans property that he contemplates selling?
Cash collateral. This Court has issued a separate tentative ruling addressing the debtor's proposed use of cash collateral (see calendar number 2, 4/12/16 at 1:00 p.m.).
Monthly Operating Report ("MOR") (dkt. 53). The debtor refers to a postpetition settlement. Will that need to be subject to a motion under Rule 9019?
Business income and expenses. The debtor's amended bankruptcy Schedules I&J (dkt. 45) fail to provide a breakdown of gross income, expenses, and net income for his business despite the instructions to do so on line 8a of Schedule I. The tentative ruling is to set a deadline of 4/19/16 to file an amended Schedule I that provides a detailed breakdown.
Deadlines/dates. This case was filed on 2/17/16.
Bar date: 6/30/16 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/5/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 4/26/16 at 2:00 p.m. (to be heard concurrently with the AOK Brothers, LLC motion to dismiss). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
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8/15/17, 11/14/17, 02/13/18, 7/10/18
Docket 6
Tentative Ruling for 9/18/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The docket does not reflect any activity. What is the status of this case, and when will it be ready for a final decree?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 7/10/18:
Continue as set forth below. Appearances are not required on 7/10/18.
Current Issues. This Court has reviewed debtor's status report (dkt. 154, 156) and other relevant pleadings in this case. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. Continue to 9/18/18 at 1:00 p.m. (no written status report required; and will go off calendar if a final decree has been issued before that time).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 2/13/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference. The tentative ruling is to set a continued status conference for 7/10/18 at 1:00 p.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Continue to 2/13/18 at 1:00 p.m. in view of the debtor's post-confirmation status report (dkt. 142). Appearances are not required on 11/14/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 8/15/17:
Appearances required. The debtor's counsel should be prepared to address the issues set forth below.
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Proposed order: If this court is persuaded to adopt this tentative ruling, then counsel for the debtor is directed to serve and lodge proposed orders (a) approving the disclosure statement (dkt. 101) on a final basis and (b) confirming the plan (dkt. 102), all as amended by the stipulation with class 2A (dkt. 127, 128). Those preposed orders must be lodged via LOU within 7 days after the hearing date.
Ballot Summary. The debtor's ballot summary (dkt. 131) appears to be inaccurate and internally inconsistent. Although the ballots and stipulation attached to the ballot summary show acceptance by 100% in both dollar amount and number of the claims actually voted or deemed to have been voted in classes 2A, 2B and 4A, and no vote by Class 2C, the ballot summary makes assertions that are not consistent with those ballots, namely:
Cramdown: The ballot summary asserts that the debtor is not requesting cramdown (dkt. 131, item 3), even though the lack of an affirmative vote in class 2C means that the debtor does not satisfy 11 U.S.C. 1129(a)(8) and therefore must seek cramdown under 11 U.S.C. 1129(b);
Accepting classes: The ballot summary asserts that only class 4A has voted to accept the plan (dkt. 131, item 6), even though classes 2A and 2B have also accepted the plan; and
Page 2 of the Ballot Summary: The chart on page 2 of the ballot summary (dkt. 131, p.2, top line of chart) fails to show that Class 2A has accepted the plan by 100% in number of claims deemed to have been voted (not just 100% in amount). In addition, it would have been helpful if the ballot summary's "Comments" following that chart had explained that (i) Portfolio Recovery Associates is Class 2C (even though it is listed as LA County Tax Collector in the Plan), (ii) U.S. Bank is Class 2A (even though it is listed as Wells Fargo in the Plan), and (iii) Class 2A is deemed to have voted in favor of the plan under its court-approved stipulation, even though it did not actually cast a ballot. (If any of the foregoing is incorret then counsel for the debtor must correct those issues at the hearing.)
Status report
The debtor's status report (dkt. 130) misleadingly asserts that this court's order (dkt. 106) previously approved the disclosure statement (dkt. 101), whereas in fact this court only granted preliminary approval for purposes of this combined hearing on whether to approve the disclosure
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statement (dkt. 101) and confirm the plan (dkt. 102).
Confirmation. Notwithstanding the foregoing, it appears that the debtor's disclosure statement (dkt. 101) should be approved, and that the chapter 11 plan (dkt. 102), as amended by the debtor's stipulation with the holder of the class 2A claim (dkt. 127, 128), has met the requirements for confirmation under 11 U.S.C. 1129(a) & (b).
Correction. This court notes that the tentative ruling for 6/20/17 (reproduced below) was in error in asserting that "[at] the status conference on 5/23/17 this court set a deadline of 6/6/17 to file an amended plan and disclosure statement." In fact, this court was persuaded at that status conference not to impose that deadline.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 8/8/17 at 1:00 p.m. (without the need for any written status report), but impose sanctions of $200 on counsel for the debtor, for the reasons set forth below. Appearances are not required on 6/20/17.
At the status conference on 5/23/17 this court set a deadline of 6/6/17 to file an amended plan and disclosure statement. On 6/15/17, after this court had already prepared a tentative ruling for this status conference, counsel for the debtor filed a stipulation (dkt. 117) and lodged a proposed order for yet another continuance of the confirmation hearing. At no point did counsel telephone chambers to suggest that counsel expected or was attempting to arrange for such a continuance. Moreover, as set forth in the tentative rulings reproduced below, this case has a long history of missed deadlines, last minute filings, and deficient documents.
This court recognizes that to a large extent counsel cannot control delays by a debtor and debtor in possession, and not infrequently a debtor is simply incapable of meeting all of the debtor's obligations. Nevertheless, this court has noted that counsel of record in this case has a pattern, in this and other cases (e.g., In re Barragan, 2:15-bk-29156-NB), of filing late and
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inadequate documents, and that pattern is not matched by the vast majority of other counsel who appear before this court. All of that strongly suggests that counsel bears some responsibility for those deficiencies, and that imposes substantial burdens on this court, the U.S. Trustee, and any other parties in interest who may be monitoring or involved in such bankruptcy cases. The tentative ruling is that this warrants sanctions under this court's inherent powers and 11 U.S.C. 105. Counsel is also cautioned that this court anticipates issuing similar or increased sanctions if this pattern continues in other cases in future.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/23/17:
Appearances required by counsel for the debtor, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The ballot summary was due 5/16/17 but was not filed until 5/22/17 at 4:12 p.m. In addition, it is internally inconsistent. What remedies are appropriate?
The plan (dkt. 102) has not been accepted by any class. This is the debtor's second bankruptcy case, and it has been pending for over a year. The debtor's lack of progress for that long a period of time suggests a willful delay. Should this court dismiss or convert this case? Should this court impose a bar against being a debtor in bankruptcy for the third time in a row?
Deadlines/dates. This case was filed on 4/20/16. If this case is not dismissed or converted, the tentative ruling is to hold a continued status conference on 6/20/17 at 1:00 p.m. with a deadline of 6/6/17 to file (but NOT serve) yet another amended plan and disclosure statement.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/23/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 4/11/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
UST compliance and adequate protection payments. What is the status?
Plan (dkt. 101) and Disclosure Statement (dkt. 102). 4/14/17 deadline to lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: See above.
Continued status conference: 5/23/17 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/28/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
U.S. Trustee notice of non-compliance. Has the debtor cured the reporting delinquency noted by the U.S. Trustee regarding lack of insurance
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(dkt. 94)?
Adequate protection payments. At the hearing on 1/10/17 counsel for the debtor assured this court that the debtor had cured the postpetition delinquency in adequate protection payments. But the monthly operating report for January 2017 (dkt. 95, filed 2/7/17, at p.4) continues to list 4 missed payments for a total of $6,972 delinquency. What was the basis for counsel's misrepresentation to this court? Should this court require counsel and the debtor to testify on that issue, and on the prospects for future income, before this court can find that the plan is feasible (11 U.S.C. 1129(a)(11))? Should this misrepresentation have any other consequences?
Plan (dkt. 82) and Disclosure Statement (dkt. 81). The debtor's ballot summary was due to be filed no later than 2/21/17 (dkt. 89). Instead the debtor's counsel has filed a declaration (dkt. 96) asserting that a ballot in favor of the plan has been received by class "6b," even though no such class is listed in the plan (see dkt. 82, Ex.A), and requesting more time to receive ballots from classes 2a and 2b, even though the deadline for ballots has passed. The parties should be prepared to address how best to proceed in these circumstances.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement (dkt. 82, 81): See above.
Continued status conference: 4/11/17 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/28/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues.
Payments to secured creditor Wells Fargo. The debtor's November 2016 MOR reflects that the debtor has not made 4 monthly payments to secured creditor Wells Fargo. See dkt. 84, PDF p. 7. Is that accurate, or did the debtor intend to state that those payments were made?
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement (dkt. 82, 81): The tentative ruling is to set the following deadlines: 1/17/17 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; and 2/28/17 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 2/28/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/8/16:
Appearances required by counsel for the debtor, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues
Amended Chapter 11 Plan and Disclosure Statement (dkt. 74, 75). There are issues with these documents which this Bankruptcy Court will review orally at the hearing.
Monthly operating reports. The debtor's court approved budget (dkt. 19) and the budget attached to her amended chapter 11 disclosure statement (dkt. 74, PDF p. 13) show various typical monthly expenses such as transportation costs, utilities, and food. The expenses included in her budgets submitted to this court are either not reflected in her MORs for August and September 2016 (dkt. 65 and 73, respectively) or are reflected, but in much smaller amounts than budgeted. Is the debtor reporting all of her monthly expenses in her MORs? If not, why not?
Additionally, the MORs appear to reflect that the debtor is receiving less than her budgeted monthly income ($1,800/mo.) from her job as a real estate professional. In August 2016, the debtor reported receipts of $970.01; in September 2016, receipts of $1,000.
Based on the reporting in the debtor's two most recent MORs, this court is concerned that the debtor may not have sufficient disposable income with which to fund her proposed chapter 11 plan.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: Deadline of 12/6/16 to file (but NOT serve) an amended draft plan and disclosure statement if sufficient issues have been resolved to finalize those draft documents (see above).
Continued status conference: 1/10/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/13/16:
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Appearances required by counsel for the debtor, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Chapter 11 Plan and Disclosure Statement (dkt. 59, 58). There are numerous issues with these documents, which this Bankruptcy Court will review orally at the hearing.
Orders on budget and cash collateral motions. On July 19, 2016, this court held continued hearings on the debtor's motion for use of cash collateral (dkt. 18) and budget motion (dkt. 19). The motions were granted on a final basis, and the court's adopted tentative ruling directed the debtor to lodge proposed orders on those motions within seven days of the hearing date. This court has reviewed the case docket and its pending lodged orders, and it appears no such orders have been lodged.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: Deadline of 10/11/16 to file (but NOT serve) an amended draft plan and disclosure statement if sufficient issues have been resolved to finalize those draft documents (see above).
Continued status conference: 11/8/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/19/16:
Appearances are not required on 7/19/16.
Current issues.
Cash collateral motion (dkt. 18). Grant on a final basis, on the same terms set forth in this court's order granting interim use of cash
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collateral (dkt. 37).
Budget motion (dkt. 19). Grant on a final basis.
The debtor must lodge proposed orders on each of the foregoing motions within seven days.
Deadlines/dates. This case was filed on 4/20/16
Bar date: Bar date: 7/29/16 (timely served, dkt. 39).
Plan/Disclosure Statement*: file by 8/19/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 9/13/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/31/16:
Appearances required by counsel for the debtor and by the debtor(s) themselves
Current issues. This Court has reviewed the debtor's status report (dkt. 23).
Prior failed case. The debtor's prior case (no. 2:14-bk-14065-NB) was a chapter 13 case that was dismissed because of plan infeasibility due to the objections by Wells Fargo, and claims by the IRS, FTB, and L.A. County Tax Collector.
Debtor's real property
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Inconsistent rental income amount. This Court notes that the debtor's amended schedule G reflects a monthly rental of $2,200 (dkt. 13, p.10), which was originally listed as $1,500 per month (dkt. 1, p.36). However, the debtor's original schedule I originally listed the debtor's net income from rental property as $2,400 (dkt. 1, p.39). The debtor's amended schedule I now lists net income from rental property as $2,200 (dkt. 13, p.12). Although the rental income now appears to be consistent at $2,200, and schedule G reflects the same lessee, Smark Lyles, is this the correct amount?
Schedule I. Part 8.a. requires that the debtor attach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income.
Motion to Value. The debtor's status report indicates that the debtor intends to file a motion to value the real property. When does the debtor anticipate filing the motion to value?
UST compliance. The United States Trustee has filed a motion to dismiss or convert (dkt. 24). Although the matter has been set for hearing on 6/21/16, the debtor should be prepared to address more generally, why this case in chapter 11 instead of chapter 13. It appears that the debtor is within the debt limits for chapter 13, and chapter 11 typically is far more expensive, so it seems doubtful that the debtor needs or can afford a chapter 11 case.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/19/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time). This Court is aware that the debtor has requested a much later deadline (dkt. 23, p.4) but this Court is not aware of any reason why so much time is needed. The debtor should be negotiating with secured creditors and other key constituencies already.
Continued status conference: 7/19/16 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Glynder Lucas Striggs Represented By Onyinye N Anyama
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Docket 87
Appearances required.
At a hearing on 7/10/18 this Court orally ordered that (1) the debtor's disclosure statement was approved on a final basis (as reflected in the written order at dkt. 101), (2) the debtor's plan was confirmed, and (3) this post- confirmation Status Conference was set, with a written status report due no later than 9/4/18. No proposed written order has been lodged confirming the debtor's plan. Counsel for the debtor is directed to do so immediately. No written status report was filed. Counsel for the debtor is directed to address why not.
Assuming there are satisfactory responses to the foregoing issues, the tentative ruling is to continue this post-confirmation Status Conference to 12/18/18 at 1:00 p.m., with a written status report due 12/4/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Steve O Chong Represented By Lionel E Giron Kevin Tang
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Joint Debtor(s):
Edwina Theresa Chong Represented By Lionel E Giron Kevin Tang
1:00 PM
Docket 149
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Status Conference (calendar no. 17, 9/18/18 at 1:00 p.m.).
Tentative Ruling for 8/14/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 7/17/18, this Court was persuaded to continue the hearing to this date to allow time for Movant to review debtor's payroll reports. There is no tentative ruling, but the parties should be prepared to provide an update on Movant's review of those reports and whether they have resolved their dispute.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Appearances required. There is no tentative ruling, but the debtor should be prepared to address what efforts, if any, it has made to try to resolve the outstanding payroll issue with State Compensation Insurance Fund.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rescue One Ambulance Represented By Michael Jay Berger
Movant(s):
State Compensation Insurance Fund Represented By
Samantha L Brackfield Virginia Hoyt
1:00 PM
5/29/18
Docket 1
Tentative Ruling for 9/18/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This status conference was continued from 8/18/18 to 9/18/18 (dkt.142). Based on recent docket activity, this Court is aware of the following issues.
Dispute with State Compensation Insurance Fund (dkt. 145-156, 158, 159). Has this matter been resolved? Perhaps so, because the Status Report (dkt. 170) does not mention it. If not, what is the status of the parties' disputes?
Final decree (dkt. 141, 151). The Status Report (dkt. 170) projects filing another motion by 12/31/18, so the tentative ruling is to continue this post-confirmation Status Conference to 12/18/18 at 1:00 p.m., with no written status report required and with the expectation that it might go off calendar if a motion for a final decree has been filed by then.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
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Continue to 8/18/18 at 1:00 p.m., brief status report due 8/4/18, based on the debtor's status report (dkt. 140), with those dates all subject to being mooted if a final decree is issued before that time. Appearances are not required on 5/29/18.
Current issues. This court has no issues to raise sue sponte.
Deadlines/dates. This case was filed on 1/1/17, and the debtor's plan was confirmed on 10/24/17 (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 5/29/18 at 1:00 p.m., brief status report due 5/15/18, all subject to being mooted if a final decree is issued before that time. Appearances are not required on 2/27/18.
Current issues. This court has no issues to raise sue sponte.
Deadlines/dates. This case was filed on 1/1/17, and the debtor's plan was confirmed on 10/24/17 (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
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Continue to 2/27/18 at 1:00 p.m., brief status report due 2/13/18, all subject to being mooted if a final decree is issued before that time. Appearances are not required on 12/12/17.
Current issues. This court has no issues to raise sue sponte.
Deadlines/dates. This case was filed on 1/1/17, and the debtor's plan was confirmed on 10/24/17 (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rescue One Ambulance Represented By Michael Jay Berger
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Docket 587
Grant, with cautions that (1) in future travel time must be separately accounted for (in tenths of an hour) so that this Court and all parties in interest can assess compliance with the 2 hour cap on billing for non-working travel time and time in court per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) and (2) the applicant's work product (such as forensic backups of hard drives) must be preserved for the benefit of the bankruptcy estate, unless and until otherwise ordered by this Court.
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel
1:00 PM
Docket 586
Grant, with a caution that in future non-working travel time and time in court must be separately accounted (in tenths of an hour) from time of the actual hearing, preparation for the hearing, and other billable tasks, so that this Court and all parties in interest can assess compliance with the 2 hour cap on billing for non-working travel time or time in court per Judge Bason's posted procedures (available at www.cacb.uscourts.gov). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel
1:00 PM
Docket 585
Appearances required. Mr. Tilem is directed to address the following issues.
Proposed order: Regardless of the final ruling, Mr. Tilem is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby memorializing the issues addressed by this Court in reaching its final ruling. See LBR 9021-1(b)(1)(B).
Overtime. The overtime chart (dkt. 592, Ex.2, p.60) is very helpful, but does it include any persons other than Mr. Tilem himself? If so, that would appear to violate the terms of employment by applying a $150/hr. Overtime Formula (dkt. 592, Main Document, Tilem Decl., para.7, at PDF p.8) to persons whose normal hourly rate is less than $600/hr. Conversely, if other persons are not included in the overtime chart, then is Mr. Tilem foregoing overtime charges for the firm's employees (without waiving such charges for future time periods)? In any event, it is unclear how the Overtime Formula is any different from the authorized terms of employment, and Mr. Tilem is directed to explain that issue and also address why was this not explained in the fee application.
Redactions. Numerous time entries have substantial redactions clearly shown via blacked-out text, and numerous other entries appear to have substantial redactions because the text stops in what appears to be mid- sentence (e.g., 3/6/18 entry, dkt. 592, Ex., p.69, "telephone call to client regarding"). A small amount of redaction may be unavoidable, but in this Court's experience the degree of redaction reflected in Mr. Tilem's timesheets is unprecedented.
Mr. Tilem has billed for that redaction (see dkt. 592, Ex., p.114, entry for 4/2/18) but has not provided any explanations for the redactions. How can this Court and parties in interest assess the reasonableness of the requested fees when there is no meaningful description for so many time entries?
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Non-working time. It is unclear whether the time entries include
non-working time. One example of non-working time is billing for travel time (in this Court's experience, it is often possible, while traveling, to do work simultaneously, such as telephone calls from a mobile phone, or preparation for a hearing during that travel time, so the time entry would be for those things rather than for travel). Another example of non-working time is time spent waiting in court for a matter to be called (without doing work such as emails or document review during that time). The posted policies of Judge Bason (available at www.cacb.uscourts.gov) cap such non-working time at 2 hours per day, absent a sufficient explanation why it is appropriate to bill for such non-working time. The fee application neither discloses whether any such time is being billed nor provides any explanation.
Is Mr. Tilem's firm billing for non-working time? If so, what is the justification?
Efficiency. The vast majority of time entries appear to reflect reasonable time spent for the type of task at issue - indeed, the overall time spent on briefs that were filed with this Court and other matters on which this Court has first-hand knowledge appear to reflect an efficient use of time (on other matters, it is impossible to tell because of the excessive redaction noted above). One time entry (noted below) is oddly at variance with this pattern, and if the timesheets were not so heavily redacted then other entries might also appear to be inefficient.
A time entry for 3/6/18 is for 1.5 hours (at $600/hr.) to prepare a list of the 20 largest general unsecured creditors and secured creditors. That task usually would not require that much time of the highest billing-rate attorney at the firm. Dkt. 592, Ex., p.89. What is the explanation?
This one example illustrates one of the reasons why redaction is such a substantial issue.
Conclusion. Should this Court set a deadline for Mr. Tilem to file his declaration with an explanation of the foregoing, and amended timesheets? Alternatively, or in addition, should this Court require greater disclosure at a later time - e.g., in connection with a final fee application - and meanwhile allow 80% of the requested fees, or some other percentage, on an interim basis?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel
1:00 PM
Docket 597
Appearances required. Mr. Insult and/or Mr. Tilem are directed to address the following issues.
Proposed order: Regardless of the final ruling, Mr. Insul and Mr. Tilem are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby memorializing the issues addressed by this Court in reaching its final ruling. See LBR 9021-1(b) (1)(B).
Redactions. Numerous time entries have substantial redactions. A small amount of redaction may be unavoidable, but in this Court's experience the degree of redaction reflected in Mr. Insul's timesheets is unprecedented. How can this Court and parties in interest assess the reasonableness of the requested fees when there is no meaningful description for so many time entries?
Non-working time. It is unclear whether the time entries include non-working time. One example of non-working time is billing for travel time (in this Court's experience, it is often possible, while traveling, to do work simultaneously, such as telephone calls from a mobile phone, or preparation for a hearing during that travel time, so the time entry would be for those things rather than for travel). Another example of non-working time is time spent waiting in court for a matter to be called (without doing work such as emails or document review during that time). The posted policies of Judge Bason (available at www.cacb.uscourts.gov) cap such non-working time at 2 hours per day, absent a sufficient explanation why it is appropriate to bill for such non-working time.
Is Mr. Insul billing for non-working time? If so, what is the justification?
Conclusion. Should this Court set a deadline for Mr. Insul to file his declaration with an explanation of the foregoing, and amended timesheets?
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Alternatively, or in addition, should this Court require greater disclosure at a later time - e.g., in connection with a final fee application - and meanwhile allow 80% of the requested fees, or some other percentage, on an interim basis?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
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Docket 596
Grant, with a caution that in future non-working travel time and time in court must be separately accounted (in tenths of an hour) from time of the actual hearing, preparation for the hearing, and other billable tasks, so that this Court and all parties in interest can assess compliance with the 2 hour cap on billing for non-working travel time or time in court per Judge Bason's posted procedures (available at www.cacb.uscourts.gov). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
1:00 PM
Docket 595
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
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Open Issues, Set Briefing Schedules and to Stay All Other Proceedings, Payments and Final Orders Pending Resolution of Critical Issues
Docket 323
Appearances required. To the extent that this Court has tentative rulings, they are set forth below. The parties should be prepared to address the following issues:
Status conferences in the interrelated bankruptcy cases. Various bankruptcy cases before this Court are interrelated: (a) In re Layfield & Barrett, APC, Case No. 2:17-bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay-Invol."), (c) In re Maximum Legal (Cal.), LLP, Case No. 2:17-bk-18433-NB ("Max-CA"). As a matter of calendar management, this Court will hold general status conferences in all of those cases concurrent with the status conferences on specific matters that have been self-calendared or specially set for today (9/18/18 at 2:00 p.m.).
L&B case: Status Conference on Mr. Layfield's Ex Parte Motion to stay proceedings etc. (L&B dkt. 325) (the "Ex Parte Motion"). This Court issued an order (L&B dkt. 325) denying Mr. Layfield's Ex Parte Motion to the extent (if any) that it sought immediate relief (e.g., excusing Mr. Layfiled or others from the bar date; staying all matters involving him or others; converting the L&B case to chapter 7; etc.). This Court also set this status conference on Mr. Layfield's Ex Parte Motion. Wellgen filed a response (L&B dkt. 332).
The tentative ruling is that this Court should not take any action at this time. Rather, Mr. Layfield must follow the applicable statutes and rules and file separate motions and/or adversary proceedings for each type of relief that he seeks in his Ex Parte Motion, instead of combining multiple requests in a single document that does not include points and authorities, includes numerous assertions that are not supported by admissible evidence, and
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does not otherwise comply with the applicable statutes and rules.
For example, Mr. Layfield would need to file and serve a motion to convert the L&B case to chapter 7, and a separate motion to consolidate the L&B case with the Max-CA case. Each of those documents would need to be supported by appropriate points and authorities, declarations, etc.
Although Mr. Layfield requests that this Court establish briefing schedules on the foregoing and other matters, that appears to be premature or unnecessary. The Local Bankruptcy Rules ("LBR") and the self- calendaring procedures (available at www.cacb.uscourts.gov) establish briefing and hearing schedules for typical motions, and there is no showing that special procedures are necessary or appropriate at this stage.
Mr. Layfield (and all other parties in interest) are reminded that they must comply with the Posted Procedures of Judge Bason (available at www.cacb.uscourts.gov). In addition, they may wish to familiarize themselves with this Court's earlier rulings in these various proceedings. See, e.g., L&B dkt. 288 (order denying Mr. Barrett's motion to stay proceedings).
Nothing in the preceding paragraphs should be interpreted as expressing any opinion about whether Mr. Layfield does or does not have standing or have grounds to seek any of the relief he mentions. For example, both standing and grounds for relief are unclear with respect to Mr. Layfield's request to establish that "all unpaid client claims and unpaid liens relating to client claims must be given priority over any secured creditors or Trustee compensation."
First, this Court is not certain what Mr. Layfield means. Second, it is unclear whether Mr. Layfield has standing to seek a determination of priority of L&B's client's claims over secured creditors' claims or any administrative expenses - presumably that is an issue between those parties. Third, assuming for purposes of discussion that Mr. Layfield is seeking some sort of declaratory judgment that he has an attorney lien with priority over the lien held by Welgen Standard, LLC (as successor to Advocate Capital, Inc.) ("Wellgen"), it is unclear whether he has any standing to assert an attorney lien (which might belong to L&B rather than Mr. Layfield) or any grounds for such relief (e.g., does he assert an attorney lien by operation of nonbankruptcy law, or contract, or on some other ground?). Fourth, it would be premature to set a briefing schedules before he has filed any adversary proceeding and motion(s) or claim objections or whatever other papers may be necessary or appropriate, complete with points and authorities, supported
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by admissible evidence.
In sum, the tentative ruling to DENY Mr. Layfield's Ex Parte Motion, without prejudice to any properly presented requests for the relief that he appears to seek. The tentative ruling is to direct Wellgen's counsel to prepare an order denying Mr. Layfield's Ex Parte Motion for the reasons stated in this tentative ruling (as they may be augmented or modified at the hearing).
Lay-Invol. case: status conference on Mr. Layfield's "Special Appearance For The Limited Purpose Of Objecting To The Employment Of Jeffrey Golden's Law Firm And The Appointment Of An Interim Trustee" (Lay-Invol. dkt. 37, the "Special Appearance"). Mr. Layfield appears to be attempting to combine at least three separate matters in a single document: (a) limiting his appearance in some way (although it is unclear whether he can limit his appearance and also request the other relief he seeks); (b) challenging the appointment of an interim chapter 7 trustee (the "Interim Trustee") and/or objecting to the selection of Mr. Avery as such Interim Trustee (see Lay-Invol. dkt. 13, order) (it is unclear what relief Mr. Layfield actually seeks); and (c) objecting to the pending application (Lay-Invol. dkt. 30) by the Interim Trustee to employ Weiland Golden Goodrich LLP (Mr. Golden's law firm) (the "Weiland Golden" firm). As with other matters, he has not included points and authorities, he makes numerous allegations that are not supported by admissible evidence, and he has not followed proper procedures.
Due to these deficiencies the tentative ruling is to deny Mr. Layfield's request to set these matters (and others) for hearing on October 23, 24, or
See Lay-Invol. dkt. 37, p.3. In addition, the tentative ruling is to deny his request for a stay of various proceedings pending resolution of these matters, for the same reasons why this Court denied his request for a similar stay in the L&B case. See L&B dkt. 325.
Nevertheless, the tentative ruling is to hold a status conference on Mr. Layfield's Special Appearance to address the following issues. To the extent he is attempting to object (a) to the appointment of an Interim Trustee generally or Mr. Avery as such Interim Trustee in particular, or (b) to the Interim Trustee's application to employ the Weiland Golden firm, the parties should be prepared to address:
interim trustee: whether the objection to the appointment of any Interim Trustee is intended to be a request for reconsideration under Rule 9023 or 9024 (Fed. R. Bankr. P.) of this Court's order
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appointing Mr. Avery; and whether Mr. Layfield can meet the standards under those rules (or any other applicable rules or
decisions), including whether Mr. Layfield was properly served and whether he has grounds to assert that there is not cause for appointment of an interim trustee at all (if that is his objection), or grounds to object to Mr. Avery as the Interim Trustee who was selected (if that is his objection); and
employment of law firm: whether this Court should, sua sponte, address the alleged conflict of interest in the Weiland Golden firm representing both the Chapter 7 Trustee (on matters not involving Wellgen) and Wellgen (see 11 U.S.C. 327(c)), or the alleged wrongdoing by that law firm (which it denies, see Lay-Invol. dkt. 37-5, Ex.I, Part V, at PDF pp. 59 et seq.), including whether this Court should set those issues for hearing; whether this Court should set a deadline for Mr. Layfield to file and serve points and authorities and any supporting evidence; and whether the United States Trustee should be requested to participate.
The tentative rulings on these issues are that, although Mr. Layfield's Special Appearance is inadequate to place the foregoing matters at issue, nevertheless the administration of these cases might be impeded unless this Court establishes a briefing schedule to obtain greater certainty, in view of Mr. Layfield's arguments, about who does or does not have authority to act for the bankruptcy estates. The tentative ruling is to give Mr. Layfield a deadline of 9/25/18 to file and serve his objections; a deadline of 10/2/18 for any response by the Interim Trustee or the Weiland Golden firm; a deadline of 10/9/18 for any reply; and a hearing date of 10/16/18 at 2:00 p.m., and to invite the U.S. Trustee to file papers by the same deadlines and appear at the hearing. The tentative ruling is to direct the Weiland Golden firm to prepare a proposed order memorializing those deadlines (with an attached copy of this tentative ruling, thereby adopting it as this Court's final ruling regarding those deadlines and the reasons for setting them).
L&B case, Pachulski v. Layfield V, LLC and Philip Layfield (Adv. No. 2:18- ap-1050-NB) ("CondoAdv."), suggestion of bankruptcy (CondoAdv. dkt. 22), and related motions for relief from automatic stay (L&B dkt. 143, 144) (the "WF R/S Motions"). Mr. Layfield points out that the order granting the plaintiff's motion for a default judgment (CondoAdv. dkt. 18) and the judgment
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(CondoAdv. dkt. 17), were entered on 5/25/18, which is a few days after the involuntary bankruptcy petition was filed against him (LayInvol. dkt.1) on 5/21/18. This Court notes that the WF R/S Motions are scheduled for a continued hearing on 10/2/18 at 1:00 p.m.
The parties should be prepared to address how this adversary proceeding should be prosecuted going forward, and whether they are seeking any procedural orders or other relief from this Court to aid in the diligent prosecution of this matter. The tentative ruling is, as a matter of sua sponte calendar management, to continue the WF R/S Motions to 10/16/18 at 2:00 p.m., to be heard concurrent with the other matters in these interrelated cases. The tentative ruling is to direct counsel for Wellgen to file a notice of that continued hearing and serve it no later than 9/21/18 via U.S. mail on Wells Fargo Bank, N.A. as well as the debtors, trustees, and other parties asserting any interest in the subject condominimum properties in the L&B, Lay-Invol., and Max-CA cases.
Mr. Layfield's future filings. This Court has reviewed all of the papers filed by Mr. Layfield in the three interrelated cases and the adversary proceedings in those cases. Those papers are disorganized and exceptionally lengthy.
This Court recognizes that Mr. Layfield may have been impeded by his recent incarceration and other changes in his life, but any litigant, particularly an attorney, must provide coherent arguments, points and authorities as needed, and admissible evidence on relevant factual issues. In future, this Court may strike papers that do not meet these minimum standards and comply with the applicable rules.
Mr. Layfield's requests for electronic service. This Court is confused by Mr. Layfield's requests (L&B dkt. 333, p.2:21-23; Lay. dkt. 37, p.2) that he be granted some sort of special electronic ability to file or be served. Although Mr. Layfield claims that he is "unable to receive ECF notifcations," he does not explain why that is so.
Attorneys can sign up for electronic filing and notices ("CM/ECF" and "NEF"). Even non-attorneys can gain access to the docket ("PACER"). All parties in interest can receive email service by filing a request for special notice and consent to such service (and, for debtors, there is the additional option of signing up for electronic notices via this Court's "DeBN" program - instructions are available at www.cacb.uscourts.gov). See Rule 5(b)(2)(E)&
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(F) (Fed. R. Civ. P.) (incorporated by Rules 7005 & 9014(b), Fed. R. Bankr. P.).
To the extent that Mr. Layfield is requesting any relief that is not already available to him, this request is DENIED.
L&B Case: Mr. Layfield's purported transfers of various claims to himself (dkt. 335-341) (the "Self-Transfers"). The parties should be prepared to address the Self-Transfers.
Max-CA case. This Court notes that Mr. Barrett has filed a motion for relief from the automatic stay (Max-CA dkt. 108, the "Barrett R/S Motion"), set for hearing on 10/2/18 at 10:00 a.m., to assert counterclaims in one of the adversary proceedings in the L&B Case (Wellgen Standard, LLC v. Max. Legal (Cal.) LLP, Adv. No. 2:17-ap-01503-NB). Although this Court has considered sua sponte rescheduling the Barrett R/S Motion (to be heard concurrent with the 10/16/18 hearings tentatively set by this tentative ruling), it appears more efficient to leave the existing hearing as is.
Mr. Layfield's address for service. This Court notes that Mr. Layfield has used variations of an address in Washington, D.C., as well as other addresses, in various documents filed recently. These multiple addresses seem prone to confusing and prejudicing parties in interest, including Mr. Layfield himself, because an address filed in one case or proceeding might or might not be used (or even known to parties) in a different case or proceeding, and because Mr. Layfield has asserted in the past that he has not been properly served.
Accordingly, the tentative ruling is to issue an order directing Mr. Layfield, no later than 9/24/18, (a) to file in each of the three bankruptcy cases (L&B, Lay-Invol., and Max-CA) and in each adversary proceeding in which he has filed any papers or is named in any capacity, a notice designating a single address for U.S. mail or overnight delivery to be used in all of these cases and related proceedings, as well as a single email address, and a statement about whether he agrees to accept service via email, and (b) to serve that notice via U.S. mail on all parties in interest (the entire creditor matrix in all cases and adversary proceedings). If Mr. Layfield fails to do so, the tentative ruling is that this Court will interpret his failure to respond as an attempt to maintain a factual ambiguity about which address is appropriate,
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and this Court may issue an order selecting the address that appears to be the most recent and, possibly, establishing evidentiary presumptions about service or other matters. The tentative ruling is to direct Wellgen to prepare a proposed order reflecting the foregoing, and to attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling on the procedure for Mr. Layfield's address to be determined.
Joint Status Conference: In addition to the above, due to the interrelated nature of the L&B, Lay-Invol., and Max-CA cases, this Court finds it appropriate to conduct a joint status conference in each of these cases (2:17- bk-19548-NB; 2:18-bk-15829-NB; 2:17-bk-18433-NB) on 10/16/18 at 2:00 pm. This joint status conference will be used to address any concerns this Court or the parties address at this 9/18/18 hearing, and any other pending issues that may arise.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Docket 1
Please see the tentative ruling for the Layfield & Barrett matter (calendar no. 1, 9/18/18 at 2:00 p.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
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Adv#: 2:18-01050 Pachulski v. Layfield V, LLC, a Delaware limited liability comp
Docket 1
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Layfield & Barrett matter (calendar no. 1, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 5/1/18:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's unilateral status report (dkt. 11). Appearances are not required on 5/1/18.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines: This adversary proceeding has been pending since 2/22/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A Status Report: 6/12/18.
Continued status conference: 6/26/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial
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Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Layfield V, LLC, a Delaware limited Pro Se Philip Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski Represented By Steven J Kahn
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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(B) the Form, Scope, and Nature of Solicitation, Balloting, Tabulation, and Notices with Respect Thereto; and (C) Related Confirmation Procedures, Deadlines and Notices
Docket 341
- NONE LISTED -
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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William G. Hill as Respondent (and Leslie Richards as Responsible Professional)
fr. 6/7/18, 08/07/18
Docket 41
Tentative Ruling for 9/18/18:
Specially set a trial and continued status conference for 9/26/18 at 9:00 a.m., in view of the order excepting these proceedings from any automatic stay that might otherwise apply in Mr. Hill's bankruptcy case (see dkt. 56, Ex.A).
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If one or more parties assert that they are unavailable on that date, then this Court will address whether to select an alternative date. In addition, the parties should be prepared to address whether this Court should approve the pretrial order proposed by the United States Trustee (dkt. 52, 53), what evidence they expect to present, and any other matters appropriate to be addressed at a pretrial/status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue to 9/18/18 at 2:00 p.m., and vacate the trial that is scheduled to commence on 8/15/18 at 9:00 a.m., in view of the automatic stay arising from
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the filing of the bankruptcy petition of Mr. William G. Hill (Case No. 1:18-bk- 11914-VK). Appearances are not required on 8/7/18.
Analysis: First, although this Court has located authority that proceedings under 11 U.S.C. 110 are within the police and regulatory power exception to the automatic stay, that conclusion may be subject to dispute, and Mr. Hill (and the Office of the United States Trustee) have not had the opportunity to brief that issue. See In re Hernandez, 66 Collier Bankr.Cas.2d 1022 at n.9 & accompanying text (Bankr. D. Colo. 2011). See also In re Dingley, 852 F.3d 1143 (9th Cir. 2017) (civil contempt proceedings exempted from automatic stay when intended to effectuate court's public policy interest in deterring litigation misconduct).
Second, regardless whether the automatic stay applies, the tentative ruling is that continuing this matter is in keeping with the spirit of the "breathing spell" that bankruptcy is supposed to afford. This Court recognizes that the debtor may be very much in need of whatever funds could be owed to him by Mr. Hill, but any delay from the automatic stay is unlikely to last long.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Appearances required. The parties have raised a number of disputed issues, including issues of credibility (attorney Leslie Richards, Esq. blaming former attorney William G. Hill and vice versa), that appear to require an evidentiary hearing. The parties are directed to address when this Court should schedule such a hearing.
In addition, the parties should be prepared to address whether 11
U.S.C. 110 can encompass liability against an attorney, as argued by the United States Trustee ("UST"). See dkt. 41, pp.2, 7-9, & nn.2 & 8). The parties should also be prepared to address whether this Court should grant
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any additional time for the UST to file additional or amended papers with respect to Ms. Richards.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Johnnie L. Fields Represented By Leslie Richards
Trustee(s):
Kathy A Dockery (TR) Pro Se
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fr. 08/13/18
Docket 27
Tentative Ruling for 9/18/18:
Appearances are not required. The tentative ruling is to grant the motion in substantial part, as set forth below.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Analysis. On the one hand, this Court is concerned about various issues. On the other hand, those concerns appear to be capable of resolution.
Feasibility. The debtor's proposed chapter 13 plan (dkt. 34, p.6) lists an arrearage owed to Wells Fargo Bank, N.A. ("WF") of $185,264.20 whereas WF's objection to that plan (dkt. 37, p.2:4) asserts an estimated arrearage of $246,128.30, which calls into question whether the current disputes are moot in view of infeasibility.
That said, WF has not filed any supplemental opposition to the debtor's motion - it was not required to do so, but its lack of supplemental opposition might (or might not) suggest that it has decided to accept the
$50,000 proposed payment from the debtor's employer REICO, LLC ("REICO") and then wait and see if the Plan succeeds or fails. This Court is inclined to adopt the same approach.
Advance from REICO. The terms of the "advance" from REICO are still potentially ambiguous. Is that "advance" a loan or an employee signing bonus?
Conceivably it was intended to be the former, at least when the concept was first presented. But if so, is it to be secured by a junior lien on the subject real property, or an assignment of commissions, or is it
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unsecured, and where is the motion for approval under 11 U.S.C. 364?
As currently presented, the "advance" from REICO appears to be an employee signing bonus. But admittedly it has some odd characteristics:
no assurances: the terms of the signing bonus (if that is what it is) do not include any assurance that the debtor will continue to work for REICO beyond the first day; but
three months' guaranteed salary: the salary payments to the debtor (minimum of $150,000/yr., payable on the tenth day of each month) are to continue for 90 days beyond any termination date (per section 9 of the Employment Agreement, dkt. 43, Ex.G);
open-ended increase in salary: REICO apparently "agrees to increase [the debtor's] salary" in whatever unknown dollar amount is required to make the Chapter 13 Plan confirmable "due to higher than anticipated claims" (id., section 20); and
no collateral or other terms: the Employment Agreement states that it is the "entire agreement" of the parties (id., section 13) so apparently the 8/9/18 letter from REICO to the debtor, which referred to the debtor's agreement to assign all real estate commissions, is inoperative.
All of these issues raise some concerns, including those previously raise by this Court in the order granting interim relief. See dkt. 38, p.2, section 3.A.6., 7. & 8. But, despite these concerns, the proposed $50,000 cash payment might be a sufficient "changed circumstance" or "good cause shown" to grant relief from the "in rem" order, provided that there are some sort of conditions such as an adequate protection order.
The Supplemental Opposition by the Northlake Homeowners Association (the "HOA") (dkt. 44). This Court did not rule on the HOA's standing at the prior hearings, but does it have standing to seek enforcement of WF's in rem order? The tentative ruling is that it does not.
Should this Court sua sponte direct the debtor to address the issue of the propriety of relying on future income from a canabis-related business?
Does that affect feasibility?
The apparent connection with canabis is troubling, given that it continues to be illegal under federal law (although legal under California law, and reputed to have both medical benefits and medical risks). On the other hand, this Court very often has debtors before it who are out of compliance with one or more statutes, regulations, ordinances, orders, etc., such as "slum lords" whose residences are not up to code; and the whole point of
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bankruptcy is to provide a breathing spell in which debtors who are out of compliance with numerous obligations can restructure and reorganize.
In addition, the connection with canabis appears to be one or two steps removed. The debtor himself apparently is not a dealer or grower; rather he is an employee of, or partner in, REICO, which apparently is a real estate business that works with businesses involved in canabis.
The tentative ruling is that this Court should not sua sponte address any canabis-related issues.
Conclusion. The tentative ruling is that this Court should grant relief from the in rem order, effective upon the payment of $50,000 to WF no later than 9/21/18, subject to a "stay current" adequate protection order with the usual terms and conditions and the additional caveats that (a) the in rem relief will stay in place to the extent of preventing any other bankruptcy case from affecting the subject real property for a period of two years, and (b) in the event of any future assertion by any person with colorable standing that the transfer from REICO is avoidable in whole or in part, this Court will have to revisit whether WF should be granted additional "adequate protection," or relief from the automatic stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/13/18:
Appearances required.
COPY of Tentative Ruling from 8/7/18 hearing on the debtor's motion (purportedly under 11 U.S.C. 362(c)(3) to continue the automatic stay, but actually seeking relief from "in rem" order under 11 U.S.C. 362(d)(4) based on changed circumstances or for good cause shown): Appearances required. The tentative ruling is to deny the motion, and issue an order to show cause ("OSC") why counsel for the debtor should not be sanctioned, because (1) the motion fails to give adequate notice of the relief
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being sought - in fact, it appears to be an attempt to obtain an order imposing the stay without mentioning that it is really seeking relief from the "in rem" order in favor of Wells Fargo Bank, N.A. (dkt. 15, Ex. A) - and (2) because the debtor has not provided sufficient evidence of "changed circumstances" or "good cause" for relief from that in rem order.
Proposed order: Movant is directed to lodge a proposed order denying the motion via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B). If this Court is not persuaded to depart from the tentative ruling to issue an OSC, this Court will prepare the OSC.
Key documents reviewed (in addition to motion papers): oppositions of Wells Fargo Bank, N.A. ("Wells Fargo") (dkt. 15) and the Northlake Homeowners Association (dkt. 16), and the debtor's reply (dkt. 22).
(1) Lack of sufficient notice. The motion is on Local Form F 4001- 1.IMPOSE.STAY.MOTION which seeks relief under 11 U.S.C. 362(c)(3) or
(4) when a case of the debtor was pending within the previoius year and was dismissed (with certain exceptions). The debtor had no such cases, the the motion admits (see dkt. 10, p.3, para. d.2.). The motion never cites 11 U.S.C. 362(d)(4), provides a copy of the in rem order, or states that the debtor is seeking "relief from such order based upon changed circumstances or for good cause shown." Id.
Therefore, the motion fails to provide adequate notice of what is being sought. Moreover, the motion was not served until 7/12/18 (dkt. 10, last two pages) without any order shortening time. In addition, the notice of motion (dkt. 10, first two pages) incorrectly states that an application for an order shortening time has been filed and remains pending, and that creditors will be served with a further notice once the court has ruled on that application. For all of these reasons the tentative ruling is to deny the motion for lack of adequate notice.
Order to show cause re sanctions. All of the foregoing can be interpreted as an attempt to mislead Wells Fargo into not realizing that the debtor was seeking relief from the in rem order. By filing the wrong form of motion, and obtaining the local form order on that motion (Local Form F 4001-
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1.IMPOSE.STAY.ORDER) the debtor could have obtained an order that would appear, at least, to impose the automatic stay against Wells Fargo without having met the standards required by 11 U.S.C. 362(d)(4). This appears to be a misuse of the bankruptcy system, and a basis for this Court to issue an OSC. At the hearing, counsel for the debtor is directed to address why this Court should not issue an OSC.
In addition to the foregoing relief, the tentative ruling is to deny the motion even if this Court were (hypothetically) persuaded to excuse the lack of adequate notice, and the apparent misuse of the bankruptcy system, and reach the merits. The reason is that the motion fails to meet the standards for relief under 11 U.S.C. 362(d)(4), as explained below.
Evidence of intent to hinder, delay, or defraud. The debtor and his spouse have filed nine bankruptcy cases between them. See dkt. 16, Rosenbaum Decl., para. 7, at PDF p.6 (listing 5 bankruptcy cases by the debtor's wife and two prior cases by the debtor) and see dkt. 22, p.2:2-6 (debtor's reply, conceding sixth case by wife, which is the one in which the in rem order was entered). The debtor has not denied, let alone presented persuasive evidence to rebut, that this string of bankruptcy cases was intended to hinder, delay, or defraud creditors. This Court notes that the statute is in the disjunctive - hinder, delay, or defraud, see 11 U.S.C. 362(d)(4). Moreover, the record before this Court shows that creditors actually were hindered, delayed, and/or defrauded because those bankruptcy filings caused years of delay and hindrance in exercising remedies for nonpayment (see dkt. 15 and dkt. 16 Ex.A), and meanwhile the interest and other charges continued to accrue while the property was under water.
Lack of evidence of changed circumstances or other good cause shown. The debtor has not provided evidence to support his alleged current and future income. As the objecting parties point out, real estate commissions tend to be uncertain and variable. That is illustrated by the debtor's lack of substantial commissions during a robust and rising real estate market of the past several years (of which this Court takes judicial notice). It is also illustrated by the lack of evidence of the debtor's alleged "new job" (apparently, according to bankruptcy Schedule I, as a self-employed "entrepreneur") starting in "January of 2018, which is [allegedly] paying
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$7,500.00 salary [gross? monthly?]." Dkt. 22, p.2:27. The debtor's lack of support for these alleged sources of income is highlighted by:
his variable and insufficient past income as reflected in his accumulated arrears and on the SOFA Part 2 (dkt. 9 at PDF pp. 28-29), ranging from $101,876 in 2016 to $37,450 in 2017, which is insufficient to cover his expenses of $8,389/mo. or $100,668/yr. ($8,389 x 12 =
$100,668/yr.) (see Schedule J, dkt. 9 at PDF p.26), and
his lack of evidence of current income, or projected future income, such as a detailed statement of gross revenues, expenses, and calculation of net income as required by the instructions in item 8a of Schedule I at dkt. 9, PDF p.24 (the debtor has - either intentionally or inadvertently - evaded that requirement by listing his income as an entrepreneur on line 2 and his real estate commissions on line 8h; and in any event neither his motion papers nor his reply papers provide any detail or evidence to support his alleged current or projected future gross revenues, expenses, and net income).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kevin S Bonn Represented By
R Grace Rodriguez
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 7
Tentative Ruling for 9/18/18:
At the hearing on 8/14/18 this Court was persuaded not to convert this case, and instead to continue this hearing, in view of the debtor's apparent agreements with certain key creditors. This Court has reviewed the debtor's status report (dkt. 77).
Current issues.
Mold issues etc. Has the debtor addressed the mold and any other health and safety issues?
Plan (dkt. 76) and Disclosure Statement (dkt. 75). The debtor treats tax claims from the IRS and the FTB as general unsecured claims (dkt. 75, Ex.F). The latter is listed as secured on the claims register. In addition, the claims register reflects Claim no. 4-1 by the LA County Treasurer for
$10,433.84 in alleged real estate taxes. How does the debtor propose to treat these claims?
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement: TBD
Continued status conference: 11/6/18 at 1:00 p.m. Brief status report due 10/30/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 8/14/18:
The tentative ruling is to convert this bankruptcy case to chapter 7. Appearances are not required. After the hearing this Court will prepare the conversion order.
Current issues.
Background. The debtor's status report notes (dkt. 62, p.2:9-12) that the debtor fell behind in mortgage payments and faced a scheduled increase in monthly payments from $2,500 to $7,800. That is an extremely unfortunate circumstance, but at this point it appears that there is no way to retain the property, and attempting to do so would simply mean that the debtor and her parents would be "throwing good money after bad." The best alternative may be for the debtor to obtain her chapter 7 discharge and the "fresh start" that is one of the main purposes of the bankruptcy system.
This Court recognizes that the debtor has attempted to save the property by moving out and renting it, as well as by obtaining contributions from her parents. Unfortunately, even if the debt is bifurcated as the debtor seeks to do, the property does not appear to be able to generate positive cash flow after payments on the mortgage. See tentative ruling for calendar no. 4 (denying motion to continue automatic stay). In addition, the property appears to have substantial deferred maintenance and other problems.
Despite the efforts of the debtor and her counsel, it does not appear possible to satisfy the requirements of the Bankruptcy Code to keep the property.
Denial of motion to continue automatic stay. As noted above, this Court's tentative ruling is to deny the debtor's motion to continue the automatic stay (see tentative ruling for calendar no. 4).
Budget motion (dkt. 17, 41, 46, 50, 56). This Court granted the debtor's budget on an interim basis (dkt. 46) and orally on a final basis at the hearing on 6/12/18, but no proposed final order was lodged. In addition, since that time the debtor has filed amended bankruptcy Schedules I&J (dkt. 56) which appear to amend the proposed budget. In addition, as set forth in the tentative ruling denying the debtor's motion to continue the automatic stay, it appears that even the latest proposed budget would need to be different, to account for greater adequate protection payments in view of increased interest rates and in view of the urgent need to stop the mold and water intrusion issues at the property from becomming worse (see tentative
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ruling for calendar no. 4). For all of these reasons, the tentative ruling is that, notwithstanding this Court's prior oral ruling, the budget motion cannot be approved on a final basis; but that issue appears to be moot because of the tentative ruling to convert this case to chapter 7.
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement: N/A.
Continued status conference: N/A.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Continue to 8/14/18 at 1:00 p.m. Appearances are not required on 7/10/18.
Current issues.
Budget motion (dkt. 17, 41, 46, 50, 56). This Court approved the debtor's budget on an interim basis (dkt. 46) and orally on a final basis at the hearing on 6/12/18, but no proposed final order was lodged, and since that time the debtor has filed amended bankruptcy Schedules I&J (dkt. 56). The tentative ruling is to deem the budget motion to be amended by those latest amended Schedules I&J and approve the budget as so amended on a final basis.
Proposed order: The debtors are directed to lodge a proposed order granting the motion via LOU, within 7 days after the hearing date, and a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Other issues. This Court has reviewed the debtor's filed Status Report (dkt. 54). This Court has no issues to raise sua sponte at this time.
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Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: Continue to the date set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 17, 29, 41). Grant the budget motion on a final basis (i) as deemed amended by the latest bankruptcy Schedules I and J (dkt. 41) and (ii) subject to a requirement that, no later than 6/19/18, the debtor must file a declaration showing how it is reasonable to estimate self employment taxes of only $100 per month (see dkt. 41, Sch.J, line 16) or, alternatively, file a declaration establishing a higher dollar amount and lodge a proposed order amending the approved budget accordingly.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and include a provision that the budget is deemed amended by dkt. 41. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 5/1/18.
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Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 7/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Amended Schedule I (dkt. 26). Bankruptcy Schedule I, paragraph 8a, requires a separate statement for any rental property showing gross receipts, ordinary and necessary expenses, and net income. The debtor has not complied. Why not?
Budget motion (dkt. 17, 29). Nothwithstanding the foregoing, this Court has reviewed the cash collateral motion (dkt. 28), which appears to set forth the gross receipts, expenses, and net income of the subject property. Based on the presumption that this is included in the budget for which the debtor seeks approval, the tentative ruling is to grant the budget motion as amended (dkt. 29), on an interim basis, subject to a final hearing at the same date and time as the continued status conference set froth below. By no later than 6/8/18, the debtor must (i) correct the above-referenced omission from bankruptcy Schedule I and the budget motion, (ii) provide notice of the final hearing on this motion via U.S. Mail to all parties in interest, and (iii) file a
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proof of service.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron Kevin Tang
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Docket 19
Tentative Ruling for 9/18/18:
Continue as set forth below. Appearances are not required on 9/18/18.
Current issues. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: TBD
Continued status conference: Continue to 11/6/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Continue as set forth below. Appearances are not required on 8/14/18.
Current issues. This Court has reviewed the debtor's status report (dkt. 203) and other relevant pleadings in this case.
Siena r/s motion. Although the debtor requests that this status conference be continued to the same date and time as the pending motion
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(dkt. 205) by Siena Lending Group, LLC for relief from the automatic stay, that could disrupt the relief from stay calendar. As an alternative, the debtor may seek a consensual or non-consensual brief continuance of Siena's motion to be heard at the same time as the status conference, if that would be more appropriate or convenient for the parties.
B&B Bachrach, LLC Post-Confirmation Status Conference (2:17- bk-15292-NB). The tentative ruling is to continue the post-confirmation status conference to the date and time set forth below to be heard concurrently with the continued status conference in the B&B Liquidating, LLC case.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: TBD
Continued status conference: Continue to 9/18/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Continue as set forth below. Appearances are not required on 6/12/18.
Current issues.
Motion to Extend (1) Time to Assume or Reject Leases and (2) Term of Store Closing Sales (dkt. 172). The tentative ruling is to grant this motion. The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
B&B Bachrach, LLC Post-Confirmation Status Conference (2:17- bk-15292-NB). The tentative ruling is to continue the post-confirmation status conference to the date and time set forth below to be heard concurrently with
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the continued status conference in the B&B Liquidating, LLC case.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: 8/31/18
Continued status conference: Continue to 8/14/18 at 2:00 p.m.
Brief written status report due 7/31/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Continue as set forth below. Appearances are not required on 5/29/18.
Current issues. This Court has reviewed the debtor's status report (dkt. 171), and other related pleadings.
Untimely Status Report and April MOR. This Court's tentative ruling for 5/1/18 (see below) directed the debtor to file a brief status report by 5/15/18, but the debtor did not file a status report until 5/18/18. Further, debtor did not file its April MOR until 5/23/18. The debtor is cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: 8/31/18
Continued status conference: Continue to 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
Current issues.
Background. At a post-confirmation status conference on 4/17/18 for B&B Bachrach (2:17-bk-15292-NB), debtor's counsel discussed the status of that case as well as the B&B Liquidating case. At counsel's request, this Court set a tentative bar date of 6/29/18, but advised counsel that this Court would hold off on issuing the bar date order (and may push the bar date back) pending resolution of the claims/noticing agent issues raised sua sponte by this Court.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to grant the motion on a final basis, as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), the amended budget (dkt. 65), and the second amended stipulation (dkt. 141). The debtor is directed to serve and lodge a proposed order via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Tentatively set as 6/29/18. DO NOT serve any notice at this time (this Court will prepare an order after the claims/noticing issues are resolved)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: continue to the date set forth at the start of this tentative ruling, brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances are not required.
Current issues. This Court has reviewed the debtor's status report (dkt. 78) and the other filed documents and records in this case.
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an a final basis.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on a final basis.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on a final basis.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to grant the motion on a final basis.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to authorize consensual use of cash collateral as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), and the amended budget (dkt. 65).
Proposed Orders. The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 7/31/18 DO NOT serve any notice at this time (this Court will prepare an order after the status conference)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: 5/29/18 at 2:00 p.m., brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/22/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear (and pursuant to LBR 9075-1, any response may be presented orally).
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. As of the time when this tentative ruling has been prepared, there is no proof of service of the debtor's motions. The following tentative rulings are subject to (i) adequate proof of service and (ii) any oppositions presented at or prior to the hearing. In addition, rather than stating at length this Court's reasoning, the following tentative rulings adopt, to the extent relevant, the reasoning of this Court regarding similar motions in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46-47).
Notice/Service. Pursuant to LBR 9075-1(a)(2)(B), this Court has already orally and conditionally granted the debtor's request to shorten time on the motions identified below, subject to the right of any party in interest to object at or before the hearing to the adequacy of notice. With those limitations, the tentative ruling is to find notice adequate and grant the debtor's requests in its motions (e.g., dkt. 5, p.3:3-5) to excuse any requirement for telephonic notice provided that overnight delivery or other permissible expedited service (e.g., personal delivery, or email as permitted by applicable rules) has been delivered no later than 24 hours prior to this hearing to all persons with a pecuniary interest that could be adversely affected by the relief requested in each motion.
Immediate relief. With respect to any immediate relief described below, the tentative ruling is that the debtor has shown sufficient cause for
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such immediate relief under Rule 6003 (Fed. R. Bankr. P.), to the extent applicable, and the other rules and procedures governing relief on an emergency or expedited basis.
Limit Notice Motion (dkt. 3). The tentative ruling is to grant this motion, subject to the following adjustments. First, the Limited Service List must be augmented to include (i) junior lienholder Emerald Capital Funding, LLC ("Emerald") and (ii) the debtor's own bankruptcy counsel (because the motion apparently contemplates that all parties in interest - not just the debtor
- will be authorized to use the Limited Service List). Second, this Court contemplates limitations that parallel this Court's modifications to the parallel order in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 53).
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on the following conditions on an interim basis, with a final hearing at the same time as the continued status conference set forth below. No later than 2/23/18 the debtor must file a declaration of its CFO or other appropriate person certifying that, first, the debtor has taken measures to assure that prepetition debts are not paid out of its existing accounts (e.g., stopping payment on prepetition checks, except to the extent authorized by this court), and second, the debtor is maintaining sufficiently detailed books and records that, if it becomes necessary to analyze the debtor's finances as of the petition date, such analysis will not be impaired by the non-closing of the debtor's prepetition accounts.
Lease Rejection Motion (dkt. 7). The tentative ruling is to grant the motion on a final basis.
Employee Wages Motion (dkt. 8). The tentative ruling is to grant this motion immediately and on a final basis as to the employees, and to grant it as to the retention of Modern HR, Inc. ("HR") either immediately or at a continued hearing if the debtor can provide an offer of proof or evidence that HR's rates are within normal market rates for comparable services.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to approve the retention of Great American Group LLC and Tiger Capital Group
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LLC (collectively, "Liquidation Consultant") subject to the filing, no later than 2/23/18, of a satisfactory statement of Liquidation Consultant's distinterestedness on Local Form F 2014-1.STMT.DISINTEREST.PROF. In addition, the tentative ruling is to authorize the proposed sales of the debtor's inventory and furniture, fixtures and equipment ("FF&E"), free and clear of any liens, claims, encumbrances or other interests of all persons/entities who have been served with the motion, with all such interests to attach to proceeds of such sales, under 11 U.S.C. 363(b) and (f)(1), (2) and (5), for the reasons stated in the motion papers. In addition, the tentative ruling with respect to compliance with nonbankruptcy liquidation laws, restrictions in leases, and abandonment of property is to track the limitations in this Court's interim order on the parallel motion in the Bachrach case (no. 2:17-bk-15292- NB, dkt. 71). In addition, the tentative ruling is to grant all such relief on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Collateral/DIP Financing (dkt. 21, 22). The parties should be prepared to address the following issues. (i) Is there any evidence that the debtor is "unable" to obtain credit by granting a "senior or equal lien" to the lien of Siena Lending Group, LLC ("Siena"), within the meaning of 11 U.S.C. 364(d)(1)(A)? (ii) Why would it be appropriate for this Court to approve a roll- up, cross-collateralization, and other provisions that generally are disapproved (see dkt. 22)? (iii) Why should this Court grant broader relief in
this case than it did in approving a similar motion in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46, Ex.A, pp.5-9, and dkt. 50)? The tentative ruling is to authorize either consensual or non-consensual use of cash collateral and, if the terms can be modified sufficiently to be acceptable, the proposed DIP financing, on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Notice of continued hearings. The tentative ruling is to set a deadline of 2/27/18 for the debtor to file and serve a notice of the final hearing on all motions that are only granted on an interim basis, and to set the same deadline for the debtor to file any supplements or amendments to such motions, with deadlines of 3/6/18 for any opposition and 3/13/18 for any reply.
Proposed Orders. This court intends to file these tentative rulings on the docket (with the caption, "Memorialization Of Tentative rulings" or the like). Thereafter, if appropriate, all orders can grant or deny relief "for the reasons stated in the Memorialization Of Tentative Rulings (dkt. ), as
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modified or supplemented on the record at the hearing" (or similar language). The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
In view of the shortened time on the foregoing motions, parties in interest may appear and dispute the foregoing tentative rulings without prior notice to the debtor or the court (contrary to the usual requirements for "tentative rulings" under Judge Bason's Procedures, posted at www.cacb.uscourts.gov).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: March 20, 2018 at 2:00 p.m., status report due 3/6/18. (see order, dkt. 18).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
1/23/18, 02/13/18, 5/1/18, 5/29/18, 6/12/18, 08/14/18
Docket 1
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 7, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 2, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 2, 6/12/18 at 2:00 p.m.).
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 4, 5/29/18 at 2:00 p.m.).
Tentative Ruling for 5/1/18:
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/17/18:
Appearances required.
Current Issues.
B&B Liquidating, LLC (2:18-bk-11744-NB). On 2/16/18 B&B Liquidating LLC ("BBL") filed a chapter 11 petition for relief before this court. In its "first-day" motions, BBL details the troubles B&B Bachrach ("BBB") encountered post-confirmation, which resulted in the need to liquidate. See e.g., BBL Liquidating Motion, dkt. 17.
BBB should be prepared to address the debtor's progress in liquidating the estate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Continue to 4/17/18 at 2:00 p.m. in view of the debtor's post-confirmation status report (dkt. 313). Brief status report due 4/3/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue to 2/13/18 at 2:00 p.m., in view of (a) the debtor's status report (dkt. 313) and (b) the inability of the Office of the United States Trustee to appear
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on 1/23/18 in view of the shutdown of much of the federal government. Note: Prior to 2/13/18 this court anticipates posting a tentative ruling for a further continuance to 4/17/18 at 2:00 p.m., unless a party in interest files a status report no later than 2/6/18 requesting to be heard on 2/13/18. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Continue to 11/7/17 at 2:00 p.m. to be heard concurrent with the fee applications. Appearances are not required on 10/17/17.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/12/17:
Appearances required but telephonic appearances are encouraged if
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advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any outstanding disputes with landlords, or other issues that are appropriate for disposition at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Bachrach, LLC Represented By Brian L Davidoff
2:00 PM
1/23/18, 02/13/18, 03/06/18, 4/17/18, 5/8/18,
6/26/18
Docket 1
Tentative Ruling for 9/18/18:
Continue all matters in this case that are set for today to 10/2/18 at 2:00 p.m.,
sua sponte. Appearances are not required on 9/18/18.
Tentative Ruling for 6/26/18:
Continue (1) the Status Conference and (2) the motion of Ms. Aliet-Gass for relief from the automatic stay to 9/18/18 at 2:00 p.m. to be concurrent with related hearings. Appearances are not required on 6/26/18.
Tentative Ruling for 5/8/18:
This court anticipates posting a tentative ruling at a later time. [NOTE: no tentative ruling was posted]
Tentative Ruling for 4/17/18:
Continue (1) calendar nos. 5, 6 and 7 on today's calendar, and (2) the motion for relief from the automatic stay filed by Ingrid Aliet-Gass for herself and Western States International, Inc. (dkt. 130, the "R/S Motion") all as set forth below. Appearances are not required on 4/17/18.
Specifically, the tenative ruling is as follows:
Continue (a) the status conference in this bankruptcy case, (b) the status conference in adversary proceeding no. 2:17-ap-01326-NB, and (c) the debtor's motion to amend the complaint in that adversary proceeding (adv. dkt. 125, and see adv. dkt. 130, 131, 139, 142) to be concurrent with (d) the motion by the Bureau of Land Management ("BLM") to dismiss the separate adversary proceeding against it (no. 2:18-ap-01057-NB, adv. dkt. 7), which is
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currently scheduled for 5/8/18 at 2:00 p.m.
Continue the R/S Motion, which is currently set for 5/1/18 at 10:00 a.m., to the same date and time.
After this hearing date this Court will prepare an order continuing all of the foregoing matters and will serve it on the BLM, Aliet-Gass, and Western States International, Inc. at the addresses known to this Court, and that order will also direct the debtor to serve those parties and any other known parties with an interest in the foregoing matters.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: 7/10/17 and 1/26/18 (sufficiently served, dkt. 56, 60, 103, 107, 110, 111, 121, 123).
Plan/Disclosure Statement*: TBD.
Continued status conference: see above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Default judgment motion - Wilshee (adv. dkt. 140). Deny for lack of service. See dkt. 140 at PDF p.4 (serving defendant at "ENTER ADDRESS HERE").
Default judgment motion - JNDDC, LLC (adv. dkt. 135). Deny for lack of service. See dkt. 135, last two pages (defendant not listed in service list).
Default judgment motion - Flavio Rodriguez (adv. dkt. 133). Deny for lack of service. See dkt. 133 at PDF p.8 (marked up by someone -
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movant? - to show deficiencies in completion of proof of service) and dkt. 133 last two pages (defendant not listed on service list).
Default judgment motion - Jag Pathirana (adv. dkt. 134). Grant. It appears that plaintiff has abandoned claims against defendant Jag Pathirana other than "clearing title" to the plaintiff/debtor's alleged property interests at issue in the complaint. That appears to moot the relevant concerns previously raised by this court (see adv. dkt. 116, exhibit).
Case status report (case dkt. 122) and adversary proceeding against Bureau of Land Management (Adv. No. 2:18-ap-01057-NB). The debtor should be prepared to provide an update as to the status of these matters.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: 7/10/17 and 1/26/18 (sufficiently served, dkt. 56, 60, 103, 107, 110, 111, 121, 123).
Plan/Disclosure Statement*: TBD.
Continued status conference: 4/10/18 at 2:00 p.m., brief status report due 4/3/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status Reports (main case dkt. 122; adv. no. 2:17-ap-01326-NB,
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dkt. 132). The debtor/plaintiff suggests that it will be filing a motion to approve a disclosure statement. Is that premature, given the following issues?
Motion to amend complaint (adv. dkt. 125). The parties should be prepared to address the issues raised in the motion and in the oppositions filed by the California Department of Conservation, Division of Oil and Gas, and Geothermal Resources ("DOGGR") (adv. dkt. 125, 130, 131).
In addition, the debtor/plaintiff should be prepared to address whether the proposed amended complaint cures the deficiencies in the original complaint, and whether any ruling on the motion to amend the complaint should be deferred until after default judgments are (or are not) obtained on the existing (original) complaint, for the reasons set forth in this Court's Memorialization Of Reasons For Denying Motions For Default Judgments (captioned for the adversary proceeding but erroneously filed in the main case as dkt. 118). See also Order denying prior motions for defaul judgments (adv. dkt. 117) and subsequent Motions for default judgments (adv. dkt. 133, 134, 135).
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60, 103, 111, 121, 123); supplemental date of 1/26/18 (order served late, but the tentative ruling is to excuse that lateness, dkt. 107, 110).
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/20/18 at 2:00 p.m., status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 1/23/18:
Continue the status conferences in both the main case and the adversary proceeding (adv. no. 2:17-ap-01326-NB) to 2/13/18 at 2:00 p.m. with a status report due 2/6/18 (at which time other documents are also due as set forth below) for the reasons set forth below. Appearances are not required on 1/23/18.
Current issues
Reasons for continuance: (i) because of the problems noted below;
because of the debtor's untimely last-minute filing of status reports (the debtor is cautioned that continued untimely filings may result in sanctions);
because of the inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government, (iv) to be concurrent with the (improperly self-calendared) motion to amend the complaint, and (v) in view of the debtor's various status reports (main case dkt. 117, adv. dkt. 122, 127, 129).
Bar date. The debtor's proofs of service of the bar date order are missing exhibits and incomprehensible (see dkt. 110, 111). The debtor is directed to file, no later than 2/6/18, either a corrected proof of service or an application (supported by a declaration) to set yet another supplemental bar date - whichever is appropriate.
Status of existing complaint in adversary proceeding. On 11/20/17 this court issued an order (adv. dkt. 117) denying the plaintiff/debtor's motions for default judgments, without prejudice. The debtor now seeks to amend the complaint (adv. dkt. 125). All of these things moot the motions for default judgments so the hearings on those motions have been vacated.
In addition, the tentative ruling is to memorialize this court's reasons for denying the motions for default judgments by filing on the docket a copy of this court's adopted tentative ruling for the 11/14/17 hearings on those motions (reproduced within the tentative ruling for calendar no. 9. 1/23/18 at 2:00 p.m.).
Motion to amend complaint (adv. dkt. 125). This motion was self- calendared for 2:00 p.m. (a time that cannot be used for self-calendaring) on 2/13/18. Nevertheless, the tentative ruling is to permit that motion to proceed at that time.
Deadlines/dates. This case was filed on 11/23/16.
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Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60); supplemental date of 1/26/18, to be served no later than 11/15/17 (per Order, dkt. 107) but proofs of service are incomprehensible (dkt. 110, 111) - see above under "current issues".
Plan/Disclosure Statement*: TBD.
Continued status conference: as set forth above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the following issues.
Current issues. The debtor has filed a second (very belated) proof of service (dkt. 103) of this court's order (dkt. 56) setting a bar date. Under that order the bar date was set as 7/10/17 and service was required no later than 5/8/17. What does the debtor's belated service do except cause confusion? Does the debtor require a new bar date for previously unknown creditors?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60; but see above under "current issues").
Plan/Disclosure Statement*: TBD.
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Continued status conference: 1/30/18 at 2:00 p.m., status report due 1/16/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
The tentative ruling is to dismiss this case with a 180 day bar for willful failure to appear in proper prosecution, as set forth below. See 11 U.S.C. 109(g)(1). Appearances are not required.
Reasons: This case was filed on 11/23/16. The debtor's assets consist of disputed rights in hydrocarbon leases. See Status Report, dkt. 81. Realizing any value from those rights apparently depends on retaining special counsel who will diligently prosecute the debtor's claims. Despite numerous opportunities, the debtor has failed to satisfy the prerequisites for retention of special counsel.
Inadequate declarations about "connections"
At the hearing on 7/11/17 this court extensively reviewed the evidence that would be required before this court could approve the application to employ the latest proposed special counsel, Mr. Montes. That included a requirement of detailed declarations from Mr. and Mrs. Hoats regarding any transfers of any property (including intangible property) involving the debtor and any of them, as well as any other "connections" (as that term is used in Rule 2014, Fed. R. Bankr. P.) to the debtor and any other party in interest.
This court recognizes that Mr. and Mrs. Hoats are not the professionals whose employment is being sought. Nevertheless, given their very close ties to the debtor, and their failure to disclose connections to the prior proposed special counsel that raised questions about conflicts of interest, this court orally ordered the debtor to provide their declarations at the hearing on
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5/2/17. That order has been ignored.
Knudsen factors
This court also directed Mr. Montes to file a declaration addressing the factors that this court must consider in assessing his request to be paid more frequently than once every 120 days. See In re Knudsen, 84 B.R. 668, 672- 73 (9th Cir. BAP 1988). Mr. Montes has filed such a declaration (dkt. 82) and has adequately summarized the factors (id., p.3:15-23) but he has not adequately addressed the third factor, which he summarizes as: "any funds paid but later disapproved by the court can be recovered from the professional" in one or more of the ways listed in Knudsen. (Emphasis added.) Those ways are:
[a. Holdback] retainer payments are for only a percentage of the amount billed so that the likelihood or necessity of repayment is minimal [Mr. Montes suggests a 10% holdback, which has not been shown to be adequate - the typical amount is 20%, and that typically applies only to well established firms whose ability to repay funds is reinforced by the firm's longevity and reputation or similar considerations];
[b. Bond] counsel can post a bond covering any possible reassessment [Mr. Montes has not addressed this factor];
[c. Financial ability to repay] counsel's financial position makes it certain that any reassessment can be repaid [Mr. Montes has not addressed this factor]; [and/or]
[d. Hold funds in trust account] funds paid prior to allowance are held in a trust account until a final or interim fee allowance is made [Mr. Montes has only offered to place the 10% proposed holdback in a trust account]. [Knudsen, 84 B.R. 668, at 672]
The debtor appears to cite the wrong statutory authority
The debtor's application to employ Mr. Montes (dkt. 65) requests that his employment be approved under subsection "(e)" of 11 U.S.C. 327. But that subsection only applies by its terms to an attorney who "has represented the debtor" (i.e., prepetition counsel whose employment is to continue postpetition). Id. (emphasis added).
That is not the end of the analysis, because it has been held that special counsel can be employed even when such counsel has not represented the debtor prepetition. See In re Fondiller, 15 B.R. 890, 892 (9th Cir. BAP 1981) (emphasis added), appeal dism., 707 F.2d 441 (9th Cir.
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1983). Although Fondiller has been interpreted as authorizing employment under subsection (e) (see, e.g., Covenant Fin. Group of Am., Inc., 243 B.R. 450, 455 & n. 8 (Bankr. N.D. Ala. 1999)), the precise holding of Fondiller appears to be that special counsel can be employed under subsection "(a)" of Section 327 because any "omission" in subsection "(e)" does not limit the general authority in subsection "(a)." See Fondiller, 15 B.R. at 891-92 (interpreting § 327(a) by comparison with §§ 327(c) and (e)).
True, the precise statutory authority appears to make little if any practical difference, because Fondiller held that when counsel is only employed to perform limited services, then an interest "adverse to the estate" means "an adverse interest relating to the services which are to be performed by that attorney," which appears to mean that the inquiry for proposed special counsel under subsection "(a)" is the same as under subsection "(e)." Fondiller, 15 B.R. at 892 (emphasis added). Mr. Montes' declaration (included in dkt. 65) appears to meet this test because he states that he has no adverse interest.
Nevertheless, as stated above this court has required additional evidence from Mr. and Mrs. Hoats and that evidence has not been provided. In addition, because the debtor has sought authority under subsection "(e)" instead of "(a)" it appears not have met the technical requirements for employment of Mr. Montes.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 7/11/17:
Appearances required.
Current issues
Employment of special counsel. Deny the application to employ the Law Offices of M. Brian McMahon (dkt. 46) because he no longer intends to pursue employment. See dkt. 73, para. 3. Deny the application to emply the Law Offices of Mike Montes, Jr. (dkt. 65) due to the failure to address the issues raised by this court in the tentative ruling for 5/2/17 (reproduced below) (without reaching the issues raised by the U.S. Trustee's objection, dkt. 72, and the debtor's reply, dkt. 74). The U.S. Trustee is directed to lodge proposed orders denying each application within seven days after this hearing
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date.
Lack of progress. Should this case be dismissed for lack of
prosecution?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/22/17 at 2:00 p.m., status report due 8/15/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Continue to 7/11/17 at 1:00 p.m. to allow the debtor time to prosecute an employment application regarding Mr. Motes (see debtor's case status report, dkt. 62). Appearances are not required on 6/13/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/2/17:
Appearances required. There is no tentative ruling, but the debtor's proposed attorney, Brian McMahon Esq., should be prepared to address the concerns set forth in the U.S. Trustee's objection (dkt. 49) and the other issues set forth below.
Current issues.
Proposed special counsel.
Background. On 4/5/17 the debtor filed an application for authority to employ the law offices of Mr. McMahon as special counsel under 11 U.S.C. 327(e) (dkt. 47). On 4/12/17 the United States Trustee ("UST")
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filed an objection to the employment application, which expressed concerns about the payment arrangement proposed in the application (dkt. 49).
The debtor filed a statement of disinterestedness for Mr. McMahon (dkt.53), and a reply (dkt.55), stating that a third party, Ms. Lilian Hoats, will be paying the attorney fees for Mr. McMahon's representation. Ms. Hoats is the CEO of Inviron Technologies, Inc. ("Managing Member"), which is the debtor's managing member (dkt. 55, Ex.1, p.1, recital "b"). Attached to the reply (dkt. 55, Ex.1) is a written document that purports to be a waiver of conflicts (if any exist) among the debtor, Ms. Hoats, and the Managing Member (the "Hoats/Managing Member Conflict Waiver").
The Attorney-Client Retainer Agreement attached to the employment application (dkt. 46, Ex.1) provides that Mr. McMahon is representing not only the debtor but also its affiliates Riverwood Energy, LLC ("Energy Affiliate") and Riverwood Resources Ltd. ("Resources Affiliate"). This court is not aware of the precise organizational and contractual relationships among the debtor, Energy Affiliate, and Resources Affiliate, nor of any written document purporting to be a waiver of conflicts (if any exist) among them.
Statutory provisions and rules
Although special counsel does not have to be "distinterested" (compare 11 U.S.C. 327(a)), special counsel still must not "represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed." 11 U.S.C. 327(e) (emphasis added). Under Rule 2014 (Fed. R. Bankr. P.) both Mr. McMahon and the debtor were supposed to disclose all connections between Mr. McMahon and "the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee."
The disclosures have not been adequate. This court does not know enough about the underlying litigation and the organizational and contractual relationships among the various entities to assess whether there may be conflicts of interest between the debtor, on the one hand, and Ms. Hoats, Managing Member, Energy Affiliate, and/or Resource Affiliate.
A DIP's conflicts generally cannot be waived
Any purported conflict waiver probably cannot waive actual conflicts.
See, e.g., In re Perry, 194 B.R. 875, 880 (E.D.Cal.1996) (waiver of conflict by non-debtor parties was insufficient and "[i]nformed consent could not be obtained" because "the real parties in interest in this case are the creditors,
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and that is not a waivable conflict"); In re B.E.S. Concrete Products, Inc., 93 B.R. 228, 235 (Bankr. E.D. Cal. 1988).
But while actual conflicts of interest create a violation of 11 U.S.C. 327 which would require disqualification of the proposed professional, the mere existence of a potential conflict of interest does not require disqualification, and it is up to the court's discretion whether the purported conflict is sufficiently threatening to the estate to warrant disqualification. In re Wheatfield Business Park, LLC, 286 B.R. 412, 421 (Bankr. C.D. Cal. 2002).
Are proposed counsel and the debtor aware of any actual conflicts?
How about potential conflicts?
The purported conflict waiver is incomplete
The Hoats/Managing Member Conflict Waiver is not actually signed by Ms. Hoats in her individual capacity (she has only signed it on behalf of the debtor's Managing Member). In addition, as noted above, this court is not aware of any purported conflict waiver among the debtor and Operating Affiliate or Resources Affiliate.
There might be conflicts among the debtor and Ms. Hoats A third party who funds a retainer for the debtor (the "Funder")
generally has some pre-existing relationship with the debtor, and/or some motivation to providing the funding. Those things increase the likelihood that the Funder could be the recipient of an avoidable preference, or might have alter ego liability, or otherwise might have interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a third party is not outright prohibited, it is fraught with ethical concerns. At the hearing, counsel for the debtor and proposed special counsel should be prepared to address the following.
Terms. What are the precise agreements, understandings or expectations regarding the funds -- e.g., are the funds a loan, a gift, an investment, or something else?
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and that the sole attorney-client relationship and duty of loyalty is with the debtor, not the Funder? Who provided such advice: independent counsel? counsel for the debtor? the debtor's proposed special counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor
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likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing? Ms. Hoats has signed the Hoats/Managing Member conflict waiver on behalf of the debtor: how can she, acting for the debtor, waive conflicts with herself?
Other considerations. Has proposed special counsel demonstrated or represented to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Lotus Prop's LP, 200 B.R. 388 (Bankr. C.D. Cal. 1996) (rejecting per se disqualification when fees are paid by third party); and compare In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990) (per se rule). See generally In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/4/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status report. This court's previous tentative ruling (reproduced below) directed the debtor to file a status report by 3/14/17. Why has no such status report been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
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Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/7/17:
Continue to 4/4/17 at 2:00 p.m., status report due 3/14/17. No appearances are required on 2/7/17.
(1) Current issues
This case was filed on 11/23/16. The debtor's status report (dkt. 34) states that the debtor intends to retain special counsel, and the monthly operating reports (dkt. 37, 38) appear to show no activity other than opening DIP bank accounts and paying associated fees. Although progress in this case has been slow, it does not appear efficient to hold a status conference at this time. If substantially more progress is not shown by the next status conference, this court may dismiss this case for failure to appear in proper prosecution. See 11 U.S.C. 109(g)(1), 349.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues.
Substitution of attorney. On 12/23/16, the debtor filed a substitution of attorney (dkt. 22) reflecting that current proposed counsel is Giovanni Orantes, Esq. Why has no employment application been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/13/16:
Appearances required.
Current issues
Counsel for the debtor should be prepared to address why no status report has been filed (see dkt. 3); why the docket does not reflect that anything has been done in this case to date; and why this court should not convert or dismiss this case.
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor and by the debtor(s) themselves, pursuant to the order setting this status conference (dkt. 3).
Current issues.
First Day Motions. The debtor should be prepared to address the necessity of first day motions such as cash collateral, payroll, utilities, etc. To the extent that those motions are necessary, why have they not yet been filed?
Deadlines/dates. This case was filed on 11/23/16.
Bar date*: to be set at the continued status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 12/13/16 at 2:00 p.m., initial status report due 11/29/16.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
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INGRID ALIET-GASS
vs DEBTOR
Docket 130
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the case status conference (calendar no. 9, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Movant(s):
Ingrid Aliet-Gass Pro Se
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Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
(2) Turnover Under 11 U.S.C. § 542 fr. 5/8/18, 6/26/18
Docket 1
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Luis A Solorzano
Giovanni Orantes
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Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
fr. 02/13/18, 03/06/18, 4/17/18, 5/8/18, 6/26/18
Docket 125
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the case status conference (calendar no. 9, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 7, 4/17/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes
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Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
David Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
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Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
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Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
3) Interfering with Economic Relationship; 4) Slander of Title;
5) Quiet Title; 6) Declaratory Relief
fr. 8/22/17, 11/14/17, 1/23/18, 02/13/18, 03/06/18, 4/17/18, 5/8/18, 6/26/18
Docket 1
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the case status conference (calendar no. 9, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 7, 4/17/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 8, 1/23/18 at 2:00 p.m.).
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Tentative Ruling for 11/14/17:
Appearances required. The tentative ruling is to deny the motions for default judgments, without prejudice, for the reasons set forth below, and to set a continued status conference for 1/30/18 at 2:00 p.m.
On the one hand, there appears to be successful prosecution of this adversary proceeding because, according to the plaintiff's status report (adv. dkt. 92), all of the defendants have either agreed to the requested declaratory relief or have defaulted. On the other hand, there are some fundamental issues that appear to prevent this court from granting default judgments at this time.
Self-calendaring error. The motions for default judgments were only served on 10/27/17. See, e.g., Motion for Default Judgment Derek Wilshee (dkt. 83, 74) (collectively, the "Wilshee Default Motion"). That is insufficient time prior to the hearing, under the applicable rules, nor was there any cover notice of the hearing date and deadline for any opposition or response.
Jurisdictional issues.
Personal jurisdiction. Does the complaint adequately establish personal jurisdiction over each defendant? At least one defendant is alleged to be a resident of Australia (dkt. 1, para. 14), although the plaintiff has voluntarily dismissed claims against that defendant (dkt. 107). Are each of the defaulting defendants subject to personal jurisdiction?
Subject matter jurisdiction, and abstention. The complaint and motions for default judgment make somewhat vague assertions of other action(s) that were or are pending in other courts apparently involving the same subject matter, and involving at least preliminary injunctive relief if not other relief. Can this Bankruptcy Court assume jurisdiction over matters that are pending in other courts? Must or should this Bankruptcy Court abstain?
Allegations of wrongdoing. Where is the analysis tying each of the defaulting defendants to one or more of the specific acts of wrongdoing bringing them within the claims in the complaint? For example, the only allegation in the complaint regarding Mr. Wilshee (dkt. 1, para. 14) appears to be that he was at one time an officer of the debtor. How is that an act of
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wrongdoing?
The Wilshee Default Motion seeks a default judgment against Mr.
Wilshee of $431,472,300.00 (dkt. 74, at PDF p.51 of 53). How is he responsible for such alleged damages? Does the complaint need to be amended to establish, as against one or more of the defaulting defendants, how they are alleged to be liable?
Calculation of damages. An exhibit to the plaintiff's motions for default judgments asserts that "Based on Department of Conservation Records [available on a website and/or verified by whom?], these leases [which leases? the ones that allegedly were supposed to be assigned but were not?] were producing 1730 barrels of Oil a day [when?]" and "[w]ith today's technology [how is today's technology better?], a conservative figure would be 3500 barrels a day [based on whose expert opinion?] that will be used as a figure for all the losses caused by Western States International [how about other defendants?]." Dkt. 83, Ex.A, at PDF p.17 of 53. The same exhibit shows a calculation of alleged damages based on "Approx Production" of "105,000" which is far more than 3500 barrels (perhaps using a 30-day presumptive month multiplied by 3500 barrels a day?), an "Average Oil Price [from what source?]," and a "Cost [to extract, market, refine, deliver, and sell the oil - or some other or different set of things? based on what expert's opinion?]." Based on the foregoing questions, and applying Rule 55(b)(2) (Fed. R. Civ. P.) (incorporated by Rule 7055, Fed. R. Bankr. P.), it appears that additional evidence and a "prove up" hearing will be needed to determine the amount of damages, if not other issues.
Alleged costs, attorney fees, and interest. The debtor/plaintiff asserts $1 million in costs (dkt. 74 at PDF p.51 of 53) - how is that possible? What are the components? Attorney fees are alleged to be $300,000 - this case has barely commenced, so how is that possible? Where are the daily time sheets and/or other support for this figure? Prejudgment interest is alleged to be at a 10% rate per year starting 1/1/11. What is the contractual or statutory basis for that interest rate and that commencement date? The purported damages were incurred month by month, so how can interest run from before those damages were incurred?
Declaratory relief. The plaintiff makes broad allegations about the rights
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under various contracts, or arising from breaches of those contracts or by operation of law. Where is the support for these allegations? The plaintiff cannot place the burden on this court to sort through numerous provisions of various contracts to piece together the plaintiff's theory. The plaintiff must provide specific, easy-to-follow analysis and evidence.
Conclusion. Because the motions for default judgments are both procedurally and substantively deficient in all of the ways set forth above, the tentative ruling is to deny them without prejudice.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. This court notes that the parties were directed to file a joint status report two weeks in advance of this hearing (dkt. 2), but have not done so. In addition, this court notes that the tentative ruling in the main case status conference (calendar no. 3, 8/22/17 at 2:00 p.m.) is to dismiss the main case, which normally would terminate this adversary proceeding.
Nevertheless, to preserve all rights in the event that this court were to be persuaded not to dismiss the main case, this court has reviewed the other filed documents and records in this adversary proceeding and issues the following tentative ruling.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif,
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135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 6/19/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 1/12/18 Expert(s) - deadline for reports: 1/26/18
Expert(s) - discovery cutoff (if different from above): 2/9/18 Dispositive motions to be heard no later than: 3/2/18
Joint Status Report: 11/28/17
Continued status conference: 12/12/17 at 11:00 a.m. Trial deadlines to be determined at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
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Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
DOES 1 through 10, inclusive Pro Se
David Smushkevich Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Paul Guiller Pro Se
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Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
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400 W. Ocean Blvd., Unit #2702, Long Beach, CA 90802 free and clear of liens and encumbrances; (3) Authorization to pay brokers' fees; and (4) Ancillary relief
Docket 244
Grant, subject to the following: (1) the debtor must filing a "good faith" declaration with a signature (see dkt. 244, p.22), (2) the proposed buyer or any winning over-bidder must file a substantially similar good faith declaration (11 U.S.C. 363(m)) before lodgment of any proposed order that includes a good faith finding, and (3) any net proceeds must be held in a separate account that requires the signature of the debtor's counsel before any withdrawals may be made (other than the proposed $10,000 to $15,000 carve-out, if the Bank consents to one, see dkt. 244, p.21, n.4). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Fresco Parties' response (dkt. 255); stipulation re Fresco Parties' Motion to Convert Cases From Chapter 11 to Chapter 7 (dkt. 266).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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Docket 211
Deny as moot, due to the debtors' amended claim of exemptions, and subject to the parties' stipulated deadline for the Fresco Parties to object to such exemptions or a dischargeability complaint. See dkt. 211, 254, 267, 271,
272. Appearances are not required.
Proposed order: The debtors are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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Docket 222
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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Docket 199
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 18, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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4/10/18, 5/8/18, 6/12/18, 6/19/18, 7/10/18, 08/14/18,
9/4/18
Docket 1
Tentative Ruling for 8/14/18:
Appearances are not required.
Current issues.
Fresco Parties' Motions to Convert Cases (dkt. 199 & Checkmate 2:17-bk-22648-NB, dkt. 185). The tentative ruling is to tentatively approve the parties' stipulations (Sakurai dkt. 266 and Checkmate dkt. 208) as settlements of the respective motions under Rule 9019 (Fed. R. Bankr. P.), and to rule that notice of such settlements need not be provided pursuant to Rule 2002(a)(3). The cause for not requiring notice is that the motions to convert were properly served, a hearing was held, the parties who sought to be heard on that matter had an opportunity to be heard, the stipulation does not appear to result in any relief different in degree from what could have been ordered at that hearing, and to the contrary the resolution appears to be better for all creditors (and all other parties in interest) than the alternative of immediate conversion of each case to chapter 7.
Proposed orders: The Fresco Parties are directed to lodge two
separate proposed orders (one for each settlement) via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The tentative ruling is to continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: per the
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parties' stipulation (dkt. 266).
Continued status conference: Continue the status conferences in the Sakurai and Checkmate cases to 10/9/18 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required.
Current issues.
Fresco Parties' Motion to Convert Cases (dkt. 199 & Checkmate 2:17-bk-22648-NB, dkt. 185). The tentative ruling is to grant Fresco's motions to convert the Checkmate and Sakurai cases to chapter 7 for the following reasons.
Gross mismanagement. The tentative finding of fact is that the debtors have grossly mismanaged their estates such that cause exists under 1112(b)(4)(B) to convert their cases. These cases have been pending for nearly a year, since 10/16/17, only very belated and half-hearted investigation or collection activity against Radiology Solutions and Fower - either using legal enforcement or practical steps. For example, at hearings on 11/14/17 and 1/30/18, the debtors maintained their belief that they could recover 100% on the dated receiveables from Radiology Solutions, despite this Court's expressed concerns with the debtors' counsel regarding the apparent lack of collection activity based on Checkmate's failure to use the vast panoply of litigation tools available to them, including examinations under Rule 2004 (Fed. R. Bankr. P.), other discovery tools, remedies such as immediately seeking restraining orders and injunctions, and non-litigation approaches such as pressuring Radiology Solutions and Fower by reporting
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their defaults to Siemens or attempting to use pressure from other suppliers, customers, government regulators, or other persons. All of those avenues should have been explored vigorously, both prepetition and postpetition, and disclosed to parties in interest in these cases.
Other "cause." The debtors appear to have run through vast amounts of money to "purchase" equipment that does not exist, and yet as set forth above they have a very cavalier attitude toward attempting to engage in discovery or collection, while continuing to insist that they expected very substantial recoveries from those sources and/or from equipment (which turned out not to exist). The tentative finding of fact is that these circumstances show not just gross mismanagement but also that the debtors are hiding facts, or they are attempting to run out the clock on possible causes of action against them or transferees of their assets, or both.
The debtors' counter-argument about the best interests of creditors is not persuasive. The debtors argue that under their liquidation analysis (Sakurai, dkt. 240, PDF p. 14, Checkmate, dkt. 194, PDF p. 17) creditors will receive faster and better recoveries if the debtors are permitted to engage in a liquidation through chapter 11, rather than converting these cases to chapter 7. There are several problems with this argument.
First, this Court questions the debtors' projected recoveries in chapter
11. The debtors have been wildly inaccurate (or have intentionally hidden the truth) before, as set forth above. This Court has no faith in the Debtors to adequately disclose and maximize the value of their remaining assets, such as the house in Japan or purported interests in that house. Moreover, this Court is concerned about the debtor's management of whatever is recovered, such as what might happen to proceeds from the sale of real property. This Court recognizes that safeguards can be attempted; but safeguards can also be evaded, and the tentative ruling is that the simplest and best safeguard is to appoint a chapter 7 trustee.
Second, this Court questions the debtor's projected lack of substantial recoveries in chapter 7. The tentative ruling is that the Fresco Parties have the better arguments regarding the potential benefits to unsecured creditors in a chapter 7 case (perhaps as much as 80% or more).
Third, supposing for the sake of discussion that the debtors were accurate in their projected recoveries in a liquidating chapter 11 case, and their comparison with projected recoveries in a chapter 7 case, that is not the only consideration. This Court must consider the integrity of the bankruptcy
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system. Given the debtors' gross mismanagement and this Court's concerns about the debtors' conduct (as described above) it appears that the only adequate safeguard of the integrity of the bankruptcy system is to convert these cases to chapter 7.
Evidentiary Objections (Sakurai, dkt. 233, 252) & (Checkmate 2:17-bk-22648-NB, dkt. 200, 204). The tentative ruling is that the history of this case and this Court's own admonishments to the debtors provides ample support for conversion, so this Court need not resolve the parties' respective evidentiary objections.
Proposed Orders. The Fresco Parties are directed to lodge proposed orders via this Court's LOU system within 7 days of the hearing.
Application to Employ KW Commercial Inland Empire (dkt. 197) and Neiman Realty (dkt. 206). If this Court adopts the tentative ruling set forth above, the tentative ruling is to continue these hearings to the date and time set forth below to allow time for the chapter 7 trustees to weigh in.
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The tentative ruling is to continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: TBD based on the outcome of the Conversion Motions.
Continued status conference: If this Court converts these cases to chapter 7, the tentative ruling is to continue the status conference in the Sakurai and Checkmate cases to 10/9/18 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 8/14/18:
Continue the status conferences in this case, the related Checkmate case (2:17-bk-22648-NB), and RS/Fower adversary proceeding (2:18-ap-01602- NB) as stated below. Appearances are not required on 8/14/18.
Current issues. This Court does not have any issues to raise sua sponte.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Amended Joint Plan/Amended Joint Disclosure Statement*: TBD at the continued status conference.
Continued status conference: 9/4/18 at 2:00 p.m., to be heard concurrently with Fresco's motions to convert the Sakurai and Checkmate cases to chapter 7. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18 (same as for 6/19/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to provide an update on the status of their negotiations, and whether all matters on calendar for today in the Sakurai and Checkmate cases (including the adversary proceeding against Fower and Radiology Solutions) should be continued to 8/7/18 at 2:00 pm., with a brief status report due 7/24/18.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 186, 187, 188). At the status conference this Court will address changes that need to be made to the amended disclosure statement and amended plan prior to service on creditors.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 186, 187): At the status conference this Court will discuss deadlines for filing an amended disclosure statement and plan, and whether to set hearing(s) on final approval of the disclosure statement and whether to approve the plan.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/8/18:
Appearances required by counsel for the debtors but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Joint Plan/ Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 176, 177, 178). At the status conference this Court will address numerous issues with these documents.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Joint Plan/Disclosure Statement* (dkt. 176, 177): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 48). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the
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hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Fresco Adversary Proceeding (adv. case no. 2:17-ap-01558-NB), including motion to remand (adv. dkt. 8). The tentative ruling is that this matter will be mooted, assuming that this Court approves the parties' proposed settlement, and therefore this matter should go off calendar. The parties are reminded to file appropriate papers to have this matter dismissed once the settlement is fully implemented.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues
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appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt.
90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
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Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
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Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on
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a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral
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and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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fr. 9/4/18
Docket 185
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 18, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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4/10/18, 5/8/18, 6/12/18, 6/19/18, 7/10/18, 08/14/18
9/4/18
Docket 1
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 18, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 7/10/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 7/10/18 at 2:00 p.m.)
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/19/18 at 2:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement (dkt. 175, 176).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 177), appear to be identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 186, 187, 188. Counsel are directed to alert this Court and the parties at the hearing if they are not.
For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/12/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 175, 176): At the status conference this Court will discuss appropriate deadlines.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required.
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Current issues.
Joint Plan/Joint Disclosure Statement (dkt. 165, 166).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 167). are substantially identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 176, 177, 178. For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 5/8/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Joint Plan/Disclosure Statement* (dkt. 166, 167): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 57). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
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Plan/Disclosure Statement. The tentative ruling is to conduct a
combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and
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conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100,
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102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
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Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
(2) Claim and Delivery; (3) Conversion; (4) Breach of Guaranty;
(5) Fraud; (6) Preliminary Injunction; and (7) Constructive Trust fr. 5/8/18, 6/12/18, 6/19/18, 07/10/18, 08/14/18, 9/4/18
Docket 1
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 18, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 7/10/18 (same as for 6/19/18):
Please see the tentative ruling for the Sakurai status conference (calendar no. 2, 7/10/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Appearances required.
Current Issues.
Joint Status Report and Notice of Continuances. This Court's 5/8/18 tentative ruling (see below) was not opposed, so it became this Court's actual ruling.
This Court directed (i) Checkmate to file and serve a notice of continuances attaching and incorporating by reference the deadlines in that
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tentative ruling by 5/7/18, and (ii) the parties to file a brief joint status report by 5/29/18. As of the preparation of this tentative ruling, none of the parties have complied. The parties are cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Motion for TRO & Claim and Delivery (adv. dkt. 10).
Plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") has filed a stipulation (adv. dkt. 30) with defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") for turnover of equipment. But Checkmate has not provided any evidence that it has relief from the automatic stay and consent of the Chapter 7 Trustee in the RS and Fower bankruptcy cases for such turnover (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA). The tentative ruling is to set a deadline of 6/19/18 for Checkmate to file a declaration attaching evidence sufficient to establish those things, and lodge a revised proposed order to approve the stipulation.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time. Continue to 7/17/18 at 2:00 p.m., brief joint status report due 7/3/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
The tentative ruling is to continue all pending matters in this adversary proceeding to 6/12/18 at 2:00 p.m. for the reason stated below, with a brief joint status report due 5/29/18, and with a deadline of 5/7/18 for the plaintiff to file and serve a notice of continuances attaching and incorporating by reference the deadlines in this tentative ruling (assuming that this Court is not persuaded to depart from this tentative ruling). Appearances are not required on 5/8/18.
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Current Issues. This Court has reviewed the parties' status reports (adv. dkt. 24 & 26) and the other filed documents and records in this adversary proceeding.
Motion for TRO & Claim and Delivery (adv. dkt. 10). At the 4/9/18 hearing on this motion, counsel for plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") apprised this Court of the bankruptcy filings of defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA) and requested a continuance of this hearing to allow time to obtain orders granting relief from stay with annulment. In the Joint status report (adv. dkt. 24), Checkmate states that the hearings on the relief from stay motions are scheduled for 5/15/18. Accordingly, the tentative ruling is to continue this motion to the date and time set forth at the start of this tentative ruling.
Siemens Motion to Dismiss (adv. dkt. 27, the "MTD"). Defendant Siemens Medical Solutions USA, Inc. ("Siemens") has properly self- calendared its MTD for 6/12/18 at 11:00 a.m. Siemens anticipates that it may be voluntarily dismissed by plaintiff (see adv. dkt. 24), but if that does not occur then this Court anticipates that the MTD may take 15 minutes or more to hear. This Court's practice is that matters anticipated to take 15 minutes or more are heard on the 2:00 p.m. calendar (not available for self-calendaring, except by permission of this Court). Therefore the tentative ruling is to re- calendar the MTD from 11:00 a.m. to 2:00 p.m., which is concurrent with the other matters in this adversary proceeding that are on today's calendar.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Represented By Vatche Chorbajian
George Tyler Fower Represented By Vatche Chorbajian
Siemens Medical Solutions USA Inc Represented By
Marsha A Houston
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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fr. 8/3/18
Docket 457
Tentative Ruling for 9/20/18:
Appearances required. The parties should be prepared to address the issues raised in the filed papers regarding each of the three motions that are set for hearing today:
the Motion to assume the lease with Odyssesus Investment Group, LLC ("Odyssesus") of the property at 1356 Palmetto St., Los Angeles, at which the debtor operates Bridge Tavern, LLC dba Villains Tavern ("Villains") (dkt. 187, the "Motion re Odyssesus" and id. Ex.1, the "Odyssesus Lease") (the portion of this motion seeking to assign this lease is no longer relevant, see dkt. 501);
the Motion to assume the lease of the property at 1629 Griffith Park Blvd. and 1604 Edgecliffe Drive, Los Angeles with the Presbytery of The Pacific (the "Presbytery") (dkt. 351, the "Motion re Presbytery" and id. Ex.A&B, the "Presbytery Lease") (the portion of this motion seeking to assign this lease apparently is no longer relevant because the proposed assignee has withdrawn), and
the Motion to extent the time under 11 U.S.C. 365(d)(4)(B) to assume and assign leases (or, potentially, reject leases), which expressly includes the lease of 1629 Griffith Park Blvd (dkt. 457, p.1:23-28) and also includes "any other leases" within the bankruptcy estate (id., p.4:2) (the "365
Motion").
This Court intends to begin the hearing by addressing with the parties whether they have reached any partial or complete resolution of their issues. If not, this Court intends to give a partial tentative ruling and then hear arguments.
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The parties are encouraged not to repeat their arguments from the papers. Principal documents reviewed: Motion re Odyssesus (dkt. 187); Committee response (dkt. 269); Motion re Presbytery (dkt. 351); 365(d) Motion (dkt. 457); Odyssesus combined oppositions (dkt. 612); Presbytery opposition and response (dkt. 613, 614); Debtor's reply re Odyssesus (dkt. 618); Committee Joinders (dkt. 619-21); Agent's Reply re Presbytery (dkt. 623); Debtor's reply re Presbytery (dkt. 624); Agent's Reply re Odyssesus (dkt. 625); Settlement Agreement between debtor, Villains and Odyssesus (dkt. 188, Ex.1, and dkt. 337); Debtor's Insolvency Report (dkt. 312); the Term Sheet governing the Agent's duties and powers (dkt. 547 and 557). This Court has also reviewed various other documents, e.g., Odyssesus' initial Opposition to the debtor's proposed assumption and assignment of the Odyssesus Lease to Mr.
Bahmani and/or his assignee (dkt. 287), but such other documents have been largely superseded (e.g., by the withdrawal of Mr. Bahmani and the parties' shift in focus to the issues addressed in the above-referenced briefs).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/3/18:
Please see the tentative ruling for the status conference (calendar no. 4, 8/3/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
1:00 PM
fr. 7/10/18, 7/16/18, 8/3/18
Docket 351
Tentative Ruling for 9/20/18:
Please see the tentative ruling for the status conference (calendar no. 1, 9/20/18 at 1:00 p.m.).
Tentative Ruling for 8/3/18:
Please see the tentative ruling for the status conference (calendar no. 4, 8/3/18 at 10:00 a.m.).
Tentative Ruling for 7/16/18:
Please see the tentative ruling for the status conference (calendar no. 15, 7/16/18 at 10:00 a.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
1:00 PM
Docket 187
Tentative Ruling for 9/20/18:
Please see the tentative ruling for the status conference (calendar no. 1, 9/20/18 at 1:00 p.m.).
Tentative Ruling for 8/3/18:
Please see the tentative ruling for the status conference (calendar no. 4, 8/3/18 at 10:00 a.m.).
Tentative Ruling for 7/18/18:
Appearances required. There is no tentative ruling. The parties should be prepared to put on their evidence and make their arguments regarding adequate assurance of future performance. See Orders (dkt. 417, 473).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
1:00 PM
Debtor(s):
Dana Hollister Represented By David A Tilem
9:00 AM
fr. 5/1/18, 5/22/18, 08/07/18
Docket 149
Tentative Ruling for 9/21/18:
Please see tentative ruling for status conference (calendar no. 6 at 9:00 a.m. on 9/21/18).
Tentative Ruling for 8/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 8/7/18).
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
9:00 AM
Fargo Trucking Logistic Co LLC, Express FTC, Inc., Hancore Brokerage Services Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019
fr. 02/13/18, 03/06/18, 5/1/18, 5/22/18, 08/07/18
Docket 36
Tentative Ruling for 9/21/18:
Please see tentative ruling for status conference (calendar no. 6 at 9:00 a.m. on 9/21/18).
Tentative Ruling for 8/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 8/7/18).
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference (calendar no. 4, at 2:00 p.m. on 3/6/18).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference (calendar no. 8, at 2:00 p.m. on 2/13/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush
9:00 AM
Movant(s):
David R Haberbush Lane K Bogard
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
9:00 AM
fr. 5/1/18, 5/22/18, 08/07/18
Docket 122
Tentative Ruling for 9/21/18:
Please see tentative ruling for status conference (calendar no. 6 at 9:00 a.m. on 9/21/18).
Tentative Ruling for 8/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 8/7/18).
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
9:00 AM
Vanessa M Haberbush David R Haberbush Lane K Bogard
9:00 AM
(2) Allocate Proceeds Resulting from Approval, if Any, of the Motion for Order Approving Settlement Between Debtor and CKT Logistics, Inc., Fargo International, LLC, Fargo Transport, LLC, Fargo Trucking Logistic Co., LLC, Express FTC, Inc., Hancore Brokerage Services, Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019 Related to the Secured Creditors Liens
fr. 07/10/18, 08/07/18, 08/23/18
Docket 122
Tentative Ruling for 9/21/18:
Please see tentative ruling for status conference (calendar no. 6 at 9:00 a.m. on 9/21/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
9:00 AM
Docket 1
Tentative Ruling for 9/21/18:
Please see tentative ruling for status conference (calendar no. 6 at 9:00 a.m. on 9/21/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
9:00 AM
Docket 1
Tentative Ruling for 9/21/18:
Appearances required. This Court has reviewed the transcript that orally memorializes the principal parties' settlement. See Tr. 9/7/18 (dkt. 295), pp. 3:16-15:18 & 30:1-4 (the "Main Settlement"). The parties should be prepared to address the following issues.
Settlement documentation. What documents are being prepared to implement the Main Settlement (e.g., the form of notice to the Truck Drivers, including their election whether to return the trucks and their agreement to mutual releases)? What is the status of that preparation? Will the notice to the Truck Drivers need to be in any languages other than English and Spanish? What steps can be taken before the documentation is finalized, and conversely what steps should wait until the documents are finalized?
Secured/unsecured Truck Drivers. How do the parties propose to address what portion of the distributions from the bankruptcy estate should be allocated to the secured claims of certain Truck Drivers, and what remainder should be allocated to unsecured claims? Is that issue deferred until a proposed chapter 11 plan? If so, how will the possible effects of various secured claim amounts be adequately explained to the Truck Drivers who will be asked to consent to the Main Settlement? Conversely, if the parties have a proposed settlement as to the allowed dollar amount of these secured claims, what are the proposed terms of that additional settlement (the "Secured Driver Claims Settlement")?
Procedures. What procedures should apply to the Main Settlement and any Secured Driver Claims Settlement (or litigation)? For example, is another
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Rule 9019 motion advisable (or necessary)? Should this Court find and conclude, under Rule 2002(a)(3), Fed. R. Bankr. P., that some sort of supplemental notice and opportunity to object (and overbid?) is sufficient, given that notice has already been provided of the basic issues and standards governing settlement? See dkt. 36 (settlement motion) and dkt. 122 (priorities/secured claims motion).
Whatever further procedures are required, should different sets of documents be provided to (a) the Truck Drivers (holding both secured and unsecured claims) and (b) other creditors (holding both secured and unsecured claims)? Should all creditors, including the Truck Drivers, receive a complete set of settlement documentation, or is that an undue expense? Is it sufficient for such documents to be available upon request? Should any cover letter/notice be translated, but not the underlying documentation (to save expense)?
Calendaring. Is it appropriate (a) to continue the status conference and settlement motion (dkt. 19) for a relatively brief time, so that the parties can prepare the settlement documentation for review by this Court prior to mailing, and (b) take off calendar (without prejudice) all other matters that have been set for hearing today, including the overbid procedures motion (dkt. 149)?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue as stated below. No appearances required on 8/7/18.
Current issues. This Court has reviewed the parties' joint status report (dkt. 262) and other relevant pleadings in this case.
Bid Procedures Motion (dkt. 149). The tentative ruling is to defer ruling on this until after resolution of the discovery dispute and continue the hearing to a date and time to be set at the continued status conference set
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forth below.
Motion to Approve Compromise (dkt. 36). The tentative ruling is to defer ruling on this until after resolution of the discovery dispute and continue the hearing to a date and time to be set at the continued status conference set forth below.
Motion to Determine Extent & Priority of Truck Drivers' Liens (dkt. 122). The tentative ruling is to defer ruling on this until after resolution of the motion to disqualify and continue the hearing to a date and time to be set at the continued status conference set forth below.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 9/4/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 5/29/18:
Appearances required.
Current issues.
Debtor’s Motion to Extend Time to Assume or Reject Lease (dkt. 139). Debtor seeks an extension of time to assume or reject its lease of commercial real property located at 2727 E. Del Amo Blvd., Rancho Dominguez, CA 90221 (the "Property") with Joe Murez Exempt Trust ("JMET" or "Landlord") through June 4, 2018. But in connection with Landlord's currently motion (dkt. 184, see discussion below), the debtor concedes that there are incurable defaults that prevent it from assuming the lease and
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states that it intends to vacate and surrender the Property by May 31, 2018 (dkt. 197, PDF p. 7, lines 17-19 & Wallace Declaration, paragraph 14).
Additionally, on May 7, 2018, debtor served its subtenants with 30-day notices to terminate rental agreement with an expiration date of June 6, 2018 (id., Ex. A).
In Landlord's motion (dkt. 184, see discussion below), it seeks possession of the Property effective as of June 5, 2018 and appears to have consented to an extension through that time (see dkt. 184, PDF p. 4, lines 26- 27).
The tentative ruling is to grant the debtor's motion and extend the deadline to assume or reject the lease to May 31, 2018. The effects of that date on the subtenants and the Landlord are addressed below.
Landlord's Motion for Administrative Claim and Possession of Property (dkt. 184).
Base rent, late fees, interest, CAM, taxes, attorneys' fees and costs. Pursuant to 11 U.S.C. 365(d)(3), Landlord is entitled to an allowed administrative expense for the full amount of rent accrued during the period following the order for relief through the lease rejection, regardless of the actual value conferred by the lease upon the estate. See Pacific-Atlantic Trading Company, 27 F.3d 401 (9th Cir. 1994); In re Cukierman, 265 F.3d 846 (9th Cir. 2001). Section 365(d)(3) requires immediate payment of lease obligations so that the landlord is not left providing uncompensated services. In re Cukierman, 265 F.3d at 851-52.
In this case, Paragraph 4.1 of the Lease provides: "All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be Rent." Pursuant to paragraphs 1.5, 4.3, 10.2, 13.4, 13.5, and 31, Landlord is entitled to an allowed administrative expense for payment of base rent, late fees, interest, CAM, taxes, and attorneys' fees and costs. On the record before this Court, Landlord holds an estimated administrative expense in the amount of $79,965.01 ($48,626 (May rent) + $4,862.20 (late fee) + $11,661.31 (real property taxes) + $14,815.5 (attorneys fees) = $79,965.01). Landlord may supplement the record to establish a valid basis for any additional amounts it may be entitled to under the Lease (e.g., prorated June rent if the debtor has not turned over the premises as of 5/31/18).
No superpriority. Section 365(d)(3) does not authorize a
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superpriority over other administrative expenses. In re LPM Corp., 300 F.3d 1134 (9th Cir. 2002). It is possible that the estate will be administratively insolvent (although the estate's assets and its administrative claims are largely moving targets until the conclusion of any bankruptcy case) so if Landlord had slept on its rights and were seeking prior months' rent it would not be entitled to payment at this time; but that is not the situation.
Landlords are entitled to current payments. Other administrative claimants are not. There is no evidence that this Landlord has slept on its rights.
Reconciling the lack of priority with the entitlement to current payments, the tentative ruling is that Landlord is entitled to immediate payment of a pro rata share of funds that are available to pay estimated accrued administrative expenses to date. This is essentially the alternative relief requested by Landlord (see dkt. 200, p.4:4-8).
Because the interim fee applications (discussed below) seek approximately $305,000 in fees and expenses, and because Landlord's claim is approximately $79,965.01, it appears that the rough total of accrued administrative expenses is approximately $385,000, of which Landlord holds roughly $80,000, or approximately 20% ($80,000/$385,000 = 20.8%).
Therefore, the tentative ruling is that Landlord is entitled to immediate payment of approximately 20% of the $47,000 in unrestricted funds currently in debtor's possession (dkt. 197, PDF p. 13, paragraph 13), or approximately
$9,400.
Landlord has not established that the funds are held in trust for it. This Court is not persuaded that the $47,000 in funds debtor has on hand is being held in trust for Landlord. Landlord has not carried its burden of establishing that, under California law, an express trust exists that excepts these funds from estate property. See Golden Mortg. Fund # 14 v. Kennedy, 171 B.R. 79, 84 (9th Cir. BAP 1994) ("A creditor has the burden to prove that the funds in the debtor's possession should be held in trust for that creditor's benefit").
Surrender and Writ of Possession. Landlord has discretion whether to extend the time for the debtor to assume or reject the Lease beyond the statutory maximum, or permit occupancy after rejection, absent nonbankruptcy law that would permit occupants to continue in possession. As set forth above, the tentative ruling is that the lease will be deemed rejected on 5/31/18.
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Because neither the subtenants nor any other party in interest has
articulated a sufficient basis for the subtenants to continue to occupy the Property following rejection of the Lease, the tentative ruling is to grant Landlord's request for a writ of possession directing any subtenants to surrender and vacate the property effective 6/6/18. Landlord is instructed to review LBR 7064-1 and include the necessary language set forth in 7064-1(e) into the proposed order.
Relief from stay. The tentative ruling is to grant Landlord relief from the automatic stay under 362(d)(1).
Waiver of 14-day stay. The tentative ruling is to waive the
14-day stay.
Interim Fee Apps of Levene Neale Bender Yoo & Brill (dkt. 177); CohenReznick LLP (dkt. 178); and Haberbush & Associates LLP (dkt. 179), and related documents (dkt. 200, 214). The tentative ruling is to approve the applications on an interim basis, subject to final review and approval at the conclusion of the case, but deny the requests for immediate payment of fees and expenses given the debtor’s limited funds on hand, except that Haberbush & Associates may draw down on its pre-petition retainer, subject to the possibility of disgorgement in future.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/7/18 at 2:00 p.m., to be heard concurrently with the other matters set for hearing in this case. Brief status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/29/18:
This court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 5/22/18:
Appearances required.
Current issues.
April MOR (dkt.192). On PDF p. 3, the debtor identifies a payment made to "Transport" on 4/26/18 in the amount of $55,515.00 for "dispatch and brokerage svc." What is this payment for? Is it an "ordinary course" transaction?
Motion to Disqualify Truck Driver Counsel (dkt. 125). This Court issued an order (dkt. 169, amended dkt. 175) continuing this motion and set
a 5/15/18 deadline for the Slattery Law Firm and Hirsch Law Firm to file supplemental papers addressing who properly represents the Truck Drivers; and (ii) a 5/21/18 at noon deadline to file any responses.
This Court has reviewed the relevant papers. See dkt. 125, 126 & 127 (motion papers), dkt. 143 (Hirsch opposition), dkt. 145 (Slattery opposition), dkt. 156, 157 (debtor's reply), dkt. 161 (Slattery decl.), dkt. 167 (Slattery Rule 2019 statements), dkt. 189 (debtor's authorities re attorney-client privilege as applied to retainer agreements), dkt. 199 (Hirsch supp. opposition), dkt. 201 (Slattery decl.), dkt. 202 (Hirsch supp. reply), dkt. 203 (Hirsch evid. obj. to Slattery decl.), dkt. 204 (Rivera|Shakleford opp. re S.H. Chung, R.M. Rubio,
H.D. Alvarez & G. Perez Silva).
There is no tentative ruling, but the parties should be prepared to address the arguments set forth in the filed papers.
(c) Objection to Claim Nos. 11, 37, 38, 40, 44, 45, 50 (dkt. 108, 109,
111, 113, 115, 117, 119). The proofs of claim were filed by the Hirsch Law Firm and the claim objections/notices were served on the Hirsch Law Firm and Slattery Law Firm. However, based on the debtor's pending motion to disqualify both firms, the tentative ruling is to continue the hearings on these claim objections to 6/19/18 at 2:00 p.m., pending resolution of the motion to disqualify. At the continued hearings, the parties should be prepared to address whether it would be appropriate for this court to set continued
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oppositions deadlines.
Note: Counsel did not comply with Judge Bason's posted procedures (at www.cacb.uscourts.gov) requiring a cost/benefit analysis for any claim objection (although this court's own cost/benefit analysis appears to favor seeking to reclassify these claim). In future, counsel should comply with those posted procedures.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/29/18 at 2:00 p.m., to be heard concurrently with the other matters set for hearing in this case. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/1/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Motion to Approve Compromise (dkt. 36). The parties should be prepared to address the status of any settlement negotiations with respect to the pending motion to approve compromise.
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Status Report. At the last status conference on 2/13/18, this court directed the debtor to file a brief status report by 2/27/18. As of the preparation of this tentative ruling, the debtor has not complied. The debtor should be prepared to address why it failed to comply with this court's order.
Employment application: Creditors' Committee Counsel (dkt. 47, 65). The objection by certain truck drivers (dkt. 63) has been withdrawn (dkt. 89). The debtor's limited objection (dkt. 55) and the reply papers (dkt. 85, 86) raise issues that are best addressed in connection with any application for compensation, at which time this Court can evaluate whether the hourly billing rates are commensurate with the nature of the work performed, the time spent on each task, and the other factors under 11 U.S.C. 330. Therefore the tentative ruling is to overrule the objection and authorize the employment.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues.
The parties should be prepared to address (a) whether the Court should order mandatory mediation of the proposed settlement, proposed assignment of the lease, and related issues; (b) whether concurrently this Court should set deadlines such as a discovery cutoff or, conversely, whether
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this Court should temporarily issue a stay of some litigation; and (c) whether the parties would prefer that this Court provide some tentative rulings or preliminary thoughts on various issues, or if instead it would foster possible settlement or serve other beneficial goals for this Court not to do those things at this stage of the case.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
n/a
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 2/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: This court will discuss setting a deadline for the filing of a draft plan/disclosure statement at the status conference.
Continued status conference: 2/13/18 at 1:00 p.m., brief status report due 1/30/18.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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William G. Hill as Respondent (and Leslie Richards as Responsible Professional)
fr. 6/7/18, 08/07/18, 9/18/18
Docket 41
Tentative Ruling for 9/26/18:
Appearances required. At the hearing on 9/18/18, this Court was persuaded to make this hearing a pretrial conference. This Court has reviewed the parties' joint pretrial stipulation (dkt. 58). The parties should be prepared (1) to confirm that they have reviewed Judge Bason's posted Procedures (available at www.cacb.uscourts.gov), under the "Trial practice" section, and
(2) to address scheduling the trial day.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Specially set a trial and continued status conference for 9/26/18 at 9:00 a.m., in view of the order excepting these proceedings from any automatic stay that might otherwise apply in Mr. Hill's bankruptcy case (see dkt. 56, Ex.A).
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If one or more parties assert that they are unavailable on that date, then this Court will address whether to select an alternative date. In addition, the
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parties should be prepared to address whether this Court should approve the pretrial order proposed by the United States Trustee (dkt. 52, 53), what evidence they expect to present, and any other matters appropriate to be addressed at a pretrial/status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue to 9/18/18 at 2:00 p.m., and vacate the trial that is scheduled to commence on 8/15/18 at 9:00 a.m., in view of the automatic stay arising from the filing of the bankruptcy petition of Mr. William G. Hill (Case No. 1:18-bk- 11914-VK). Appearances are not required on 8/7/18.
Analysis: First, although this Court has located authority that proceedings under 11 U.S.C. 110 are within the police and regulatory power exception to the automatic stay, that conclusion may be subject to dispute, and Mr. Hill (and the Office of the United States Trustee) have not had the opportunity to brief that issue. See In re Hernandez, 66 Collier Bankr.Cas.2d 1022 at n.9 & accompanying text (Bankr. D. Colo. 2011). See also In re Dingley, 852 F.3d 1143 (9th Cir. 2017) (civil contempt proceedings exempted from automatic stay when intended to effectuate court's public policy interest in deterring litigation misconduct).
Second, regardless whether the automatic stay applies, the tentative ruling is that continuing this matter is in keeping with the spirit of the "breathing spell" that bankruptcy is supposed to afford. This Court recognizes that the debtor may be very much in need of whatever funds could be owed to him by Mr. Hill, but any delay from the automatic stay is unlikely to last long.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Appearances required. The parties have raised a number of disputed issues, including issues of credibility (attorney Leslie Richards, Esq. blaming former attorney William G. Hill and vice versa), that appear to require an evidentiary hearing. The parties are directed to address when this Court should schedule such a hearing.
In addition, the parties should be prepared to address whether 11
U.S.C. 110 can encompass liability against an attorney, as argued by the United States Trustee ("UST"). See dkt. 41, pp.2, 7-9, & nn.2 & 8). The parties should also be prepared to address whether this Court should grant any additional time for the UST to file additional or amended papers with respect to Ms. Richards.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Johnnie L. Fields Represented By Leslie Richards
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
with Real Time Resolutions Agent For New York Bank Mellon
Docket 20
Deny, because the appraisal is as of 3/8/17 (dkt. 20, Ex.B) but the petition date is over a year later 6/6/18, and Judge Bason's posted procedures (available at www.cacb.uscourts.gov) state that the appraisal should be "as near to the petition date as possible." See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Anthony De La Rosa Represented By Antonio John Ibarra
Joint Debtor(s):
Angelica Leticia De La Rosa Represented By Antonio John Ibarra
Movant(s):
Anthony De La Rosa Represented By
8:30 AM
Antonio John Ibarra Antonio John Ibarra
Angelica Leticia De La Rosa Represented By Antonio John Ibarra
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Property located at 16724 Almaden Drive Fontana, CA 92336
Docket 26
- NONE LISTED -
Debtor(s):
Mae E. Wood Represented By
James D. Hornbuckle
Movant(s):
Mae E. Wood Represented By
James D. Hornbuckle
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 45
Grant for the reasons stated in the motion papers, and due to the lack of any filed opposition. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Enrique Saldana Lomeli Represented By William G Cort
Movant(s):
Trojan Capital Investments LLC Represented By
Rafael R Garcia-Salgado Richard J Reynolds
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 107
Grant, and dismiss this case for both of the alternative reasons stated in the motion papers, and due to the lack of any filed response by the debtors.
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Oswaldo Barba Represented By
James D. Hornbuckle
Joint Debtor(s):
Jeanne Teran Represented By
James D. Hornbuckle
Movant(s):
FRANCHISE TAX BOARD Represented By Suman Mathews
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 31
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis Alfaro Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Amalia Alfaro Represented By Rebecca Tomilowitz
Movant(s):
Luis Alfaro Represented By
Rebecca Tomilowitz Rebecca Tomilowitz Rebecca Tomilowitz
Amalia Alfaro Represented By
8:30 AM
Trustee(s):
Rebecca Tomilowitz
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 18
Continue to 10/25/18 at 8:30 a.m. for the debtor to file and serve, no later than 10/3/18, a supplemental declaration attaching a copy of the subject proof of claim (as required by the LBR and the Local Form of notice). Appearances are not required on 9/27/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alejandro Mario Palacio Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
N.A. filed by LVNV Funding, LLC as successors and assigns of Citibank (South Dakota), N.A.
Docket 25
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Francisco Javier Gonzalez Represented By Barry E Borowitz
Joint Debtor(s):
Maria Alicia Gonzalez Represented By Barry E Borowitz
Movant(s):
Francisco Javier Gonzalez Represented By Barry E Borowitz Barry E Borowitz
Maria Alicia Gonzalez Represented By
8:30 AM
Trustee(s):
Barry E Borowitz Barry E Borowitz
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 30
Deny, but appearances required to address the following issues.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Failure to attach proof of claim. Counsel for the debtor did not attach a copy of the proof of claim to the filed papers, despite the fact the Local Bankruptcy Rules and the Local Form both say that a copy must be attached.
Failure to serve at correct address. One reason for requiring a copy of the proof of claim is that it includes the address to which notices should be sent. In this instance Proof of Claim 1 lists an address for notices in Eagan, MN, but the proofs of service included in the debtor's claim objection (dkt. 30, 31, 33) all show service at an address in Des Moines, IA.
Counsel for the debtor is directed to address at the hearing why the wrong address was used. This Court has serious concerns about an objection to a claim of this large a dollar amount, with an asserted security interest in collateral, and with allegations of fraud and yet that was served so poorly.
Inadequate evidence. The debtor admits that he applied for and received a line of credit. But he claims that he never drew on that line, that the funds were dispersed into an account ending in 5170 which was not the debtor's account, that he has previously asked the claimant for "statements and all related documents" (dkt. 33-1, last page, last paragraph) but has not been provided with anything, and that he has filed a fraud claim with the FDIC and the investigation is ongoing.
Although these are very troubling allegations, the debtor has not
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provided enough information and documentation to overcome the prima facie validity of the claim. For example, why would the debtor apply for a line of credit but then not use it? Does the debtor have any information about who would have known that the debtor had a line of credit, and how the alleged fraud happened? Why is there no copy of the fraud report attached to the declaration? Were the debtor's inquiries to the claimant in writing, and if so, why are no copies attached? Was there no response at all from the claimant, or is the debtor only asserting that the response was not what he wanted?
Etc, etc, etc. There are too many gaps and oddities in this story for it to overcome the prima facie validity of the claim.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Joseph Salazar Represented By Bryn C Deb
Movant(s):
Joseph Salazar Represented By Bryn C Deb Bryn C Deb
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 11
Appearances required. The tentative ruling is to dismiss this case with a 180 day bar against being a debtor in bankruptcy, for willful failure to appear in proper prosecution of this case within the meaning of 11 U.S.C. 109(g)(1).
First, the debtor has not filed any response to this Court's order (dkt. 11) to show cause why this case should not be dismissed (due to the pendency of a previous bankruptcy case, Case No. 2:18-bk-17915-RK). See also dkt. 13 (proof of service on 9/13/18).
Second, although it is certainly possible to make legitimate use of this latest case, such as a "chapter 20" that discharges unsecured debts in a chapter 7 case and then cures arrears in secured debts in a chapter 13 case, that is not what the debtor is proposing. Rather, the debtor's proposed chapter 13 Plan (dkt. 6) is incomplete, mostly blank, and insufficient.
Third, although the automatic stay apparently will expire shortly (under 11 U.S.C. 362(c)(3)), due to a prior dismissed case (Case No. 2:18-bk-16715- SK) the debtor has not filed any motion to continue the automatic stay.
Therefore it seems doubtful that there would be anything gained by further proceedings in this bankruptcy case, and this is further evidence that the debtor is failing to appear in proper prosecution of this case.
This Court recognizes that the debtor may be distraught over the loss of his home (see Case No. 2:18-bk-17915-RK, dkt. 16). But that does not mean the debtor can file repeated bankruptcy cases without prosecuting them.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Juan Carlos Guevara Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 44
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether the accounting attached as Ex.B to the Opposition (dkt. 53) is compatible with the monthly statements attached to the Reply (dkt. 54, Ex.C), and the other issues raised by the parties, including standing and attorney fees.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Randall Allen Rush Represented By Kahlil J McAlpin
Joint Debtor(s):
Jervonia Monique Rush Represented By Kahlil J McAlpin
Movant(s):
Randall Allen Rush Represented By Kahlil J McAlpin Kahlil J McAlpin
Jervonia Monique Rush Represented By
8:30 AM
Trustee(s):
Kahlil J McAlpin Kahlil J McAlpin
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 79
Debtor(s):
Luis Alfonso Duran Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Joint Debtor(s):
Alejandra Janeth Campos Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Movant(s):
Luis Alfonso Duran Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Alejandra Janeth Campos Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
U.S.C. section 522 (f) with Patricia Reyes fr. 8/2/18
Docket 21
Tentative Ruling for 9/27/18:
Grant, based on the third party appraisal (see dkt. 29), which concludes that the value is slightly greater than what was alleged in the motion (dkt. 21).
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/2/18:
Appearances required.
Key documents reviewed (in addition to motion papers): Patricia Reyes ("Reyes") Opposition (dkt. 26); Declaration of Jihad M. Smaili (dkt. 27); Debtor's Evidentiary Objections and Request to Strike Declaration of Jihad M. Smaili (dkt. 35); Debtor's Reply (dkt. 36).
Current issues.
Timeliness of motion. Reyes objects that the motion is untimely pursuant to LBR 3015-1(b)(7). The tentative ruling is to overrule this
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objection as follows. First, Reyes has not affirmatively shown any undue prejudice resulting from debtor's delay in filing the motion. Second, this Court's own review of the docket suggests that there was in fact no prejudice to Reyes because debtor's plan stated an intent to file the motion (dkt. 14, PDF pp. 2, 11), and debtor filed her plan within 28 days of the petition date, on 4/14/18.
Evidentiary issues (dkt. 35, pp.2:22-5:9). The tentative ruling is to sustain objection numbers "1" and "2" in full, "3" on the hearsay ground (and the lack of reliability of Zillow, Redfin, and Trulia, at least when not used by a licensed real estate appraiser or other person who could qualify as an expert who generally can rely on hearsay), and "5" (there is no "4") because the Reyes appraisal must be authenticated by the appraiser, not by Reyes' attorney.
Despite sustaining all of these objections, the result is only that there is a disputed issue of fact as to the value of the subject property. Moreover, the debtor's Reply includes new evidence, which is generally improper in a reply. That new evidence may or may not be sufficient to support the debtor's asserted valuation of the subject property. This is an additional reason why there are disputed issues of material fact that must be resolved.
Note: Although Reyes' Opposition alleges that there are a number of "substantial omissions and misrepresentations" in the papers filed by the debtor (dkt. 26, p.4:12-21), she does not appear to assert any evidentiary objections based on those alleged facts, nor does she explain how they might be relevant to valuation or other issues in connection with this motion.
Therefore this Court expresses no view on those allegations.
Evidence of Value. There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Laura Fey Perez Represented By Leonard Pena
Movant(s):
Laura Fey Perez Represented By Leonard Pena
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 06/07/18, 6/28/18, 8/2/18
Docket 63
Tentative Ruling for 9/27/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address whether the outstanding escrow accounting issues have been resolved (as the parties hoped at the time of the 8/2/18 hearing).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/2/18 (same as for 6/7/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At a hearing on 5/8/18 on Wells Fargo's motion for relief from stay, Wells Fargo withdrew its motion and the parties stated that they believed they could resolve the outstanding escrow issues in the context of this motion. On 7/30/18, Wells Fargo filed a Notice of Withdrawal of Notice of Mortgage Payment Change (Claim 4) (dkt. 89) ("Withdrawal Notice"). There is no
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tentative ruling, but the parties should be prepared to address whether the Withdrawal Notice moots the debtor's pending objection.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
COPY OF TENATIVE RULINGS ON RELATED MOTION (dkt. 58) FOR RELIEF FROM AUTOMATIC STAY
Tentative Ruling for 5/8/18:
Appearances required.
At the hearing on 3/20/18, this Court continued the matter to this date and directed (1) debtor to commence making higher payments to Movant in the amount of $4,079.99 ($3,698.51 P&I + $381.48 escrow); and (2) set deadlines for (a) Movant to file a supplemental declaration regarding recalculation of the appropriate monthly escrow fund payment, and (b) debtor to file a response.
This Court has reviewed Movant's supplemental declaration (dkt. 68) and debtor's response (dkt. 72). The parties should be prepared to address whether they have reached any resolution regarding debtor's contention that Movant has not taken into account any credits received from hazard insurance and county taxes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/20/18:
Grant in part, deny in part, and continue to 4/10/17 at 10:00 a.m., all as set forth below. Appearances required.
Background
The parties appear to agree that the debtor has made monthly payments of $3,698.51 (the normal amortizing principal and interest payments). Those payments were due on the first day of each month, and generally were paid a few days later. See dkt. 8, Ex.5 (movant's spreadsheet) and dkt. 61, Ex.A, & dkt. 62) (debtor's copies of cashier checks). The motion lists some late charges, attorney fees, and other items (dkt. 58, p.7, para.8), but those do not appear to have been included in the movant's spreadsheet (dkt. 58, Ex.5, at PDF pp.30-33), perhaps because the listed amounts are for prepetition periods. In any event, the core of the parties' disagreement appears to involve an escrow impound account to pay real estate taxes and property insurance premiums.
The debtor's assertions of "improper" escrow impounds are unpersuasive The debtor's declaration (dkt. 61, Tribelsky Decl., para.9, at PDF
p.7:24-28) asserts that the impound is "improper" and that the debtor has "struggled with [movant] Wells Fargo to have them end these impounds." The debtor also declares (dkt. 61, at PDF p.7:16-22) that there was an "improper increase" in monthly payments starting on March 1, 2016, which he believes was due to an escrow impound for taxes and insurance.
The debtor fails to explain why there is anything "improper" about requiring him to pay into an escrow for real estate taxes and insurance. The loan documents (dkt. 8, Ex.1, para.3, pp.4-5) require the debtor to make escrow payments for taxes and insurance premiums on the same date at the payments of principal and interest.
It is true that the movant apparently had not required escrow payments for some unspecified period prior to March 1, 2016. See Notice of Mortgage Payment Change (Official Form 410S1) (the "Change Notice"), filed 1/19/16 on the Claims Register, at PDF pp.5-6 (requiring monthly payments of
$351.96 commencing March 1, 2016). But if the debtor is asserting some sort of waiver that argument is unpersuasive. The Deed of Trust provides (dkt. 58, Ex.1, para.3, pp.4-5) that although the movant may waive the escrow requirement, the movant "may revoke the waiver as to any or all Escrow
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Items at any time" and then the debtor "shall pay" all escrow amounts.
The debtor apparently just ignored his obligation to pay escrow impound amounts. Instead he has presented evidence (dkt. 61, Ex.B, at PDF pp.38 et seq.) that he paid taxes directly to the tax authorities and insurance premiums directly to the insurers.
It appears that the movant must have credited the debtor's direct payments of taxes and insurance, because its Change Notice filed on 10/18/16 lists a low estimated "Starting balance" of $861.27 as of December 2016 (although that apparently assumes that the debtor would start making his required escrow payments). In any event, the movant''s Change Notice is prima facie evidence of the validity of this underlying calculation in support of its claim, and the debtor has not established that there is anything wrong with the movant's accounting included in its Change Notice filed on 10/18/16.
Similarly, by the time of the next Change Notice it appears that the movant must have once again credited the debtor's direct payments of taxes and insurance because, the escrow account projections ("Part 3") project a required "Starting balance" for March 2018 of only $762.96 (although, again, this appears to assume that the debtor will have made certain payments into the escrow account by the start of March 2018). In any event, the debtor has not shown that there is anything wrong with this supporting underlying documentation of the movant's claim.
Despite the deficiencies in the debtor's arguments and evidence, it appears that the motion itself fails to account for the debtor's direct payments of real estate taxes and insurance
The motion asserts (dkt. 58, p.9, para.12.c.) that the debtor was behind three payments of $4,053.45, for a total of $12,160.35, less a suspense account balance of $1,166.12, for a total of $10,994.23 as of approximately 12/12/18 (when the declaration in support of the motion was signed). But unlike the Change Notices the motion does not appear to give the debtor credit for direct payments of real estate taxes and insurance.
Based on the spreadsheet attached to the motion as Exhibit 5 (dkt. 58, at PDF pp.30-33), the alleged shortfall of $10,994.23 appears to be the cumulative sum of all the shortfalls between the $3,698.51 that the debtor was paying each month (the normal amortizing principal and interest payments) and the higher monthly amounts that he should have been paying in order to fund the escrow account. There are no entries in the spreadsheet
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that appear to reflect the debtor's direct payments of taxes and insurance.
Nor is it possible to rely on the latest Change Notice to determine precisely what the debtor owes. At first glance that Change Notice would appear to have current information because it was filed on 3/5/18, but it provides only a projected shortfall of $762.96 in the escrow account as of March 2018 (3/5/18 Charge Notice at PDF p.6, Part 3, end of first line). That projection probably is too low, because it appears to assume that part of the debtor's monthly payment is credited to the escrow account in January of 2018, and that the debtor will make some very substantial payments in February and March of 2018, and that the real estate taxes that are due in March of 2018 will be paid out of those escrow payments (see id., Part 4, 2d and 5th columns, rows for January, February, and March, including credits of
$1,281.90, $9,810.75, and $354.94, and debit of $1,612.38).
The bottom line is that although the movant has not established precisely what the debtor owes, it has established cause for some sort of relief from the automatic stay - namely, there is "cause" within the meaning of 11 U.S.C. 362(d)(1) in that the debtor has failed for many months to comply with his obligations to fund the escrow account, which exposes the movant to the risk that it will have to bear the cost if the debtor fails to pay real estate taxes or insurance (especially if the property were to be damaged or completely burn down). The required adequate protection is for the debtor to cure the deficiency in the escrow account over a reasonable period of time.
The latest Change Notice (filed 3/5/18) can be used as a starting point. It requires that the debtor pay $381.48 per month into the escrow account, in addition to his regular monthly payments of $3,698.51 on account of principal and interest, for total monthly payments of $4,079.99. The escrow payments may have to be adjusted (as noted above, the Change Notice appears to assume that the debtor will have made some very substantial payments by the start of March 2018), but this Court can set a schedule for such adjustment (see below).
Conclusion
The tentative ruling is to set a deadline of 4/1/18 for the debtor (a) to file evidence that he has paid the March 2018 real estate tax payment directly to the taxing authority and (b) to commence making monthly payments of
$381.48 into the escrow account, in addition to his regular monthly payments of $3,698.51 on account of principal and interest, for total monthly payments
8:30 AM
of $4,079.99.
In addition, the tentative ruling is to set a deadline of 4/1/18 for the movant to file a supplemental declaration showing a calculation of the required escrow balance as of 5/1/18, the required monthly payments for the debtor to cure the deficiency in that escrow balance, and the resulting new total monthly payment that the debtor will have to pay on 5/1/18 and each month thereafter.
Finally, the tentative ruling is to set a continued hearing at the date and time set forth at the start of this tentative ruling, so that the parties and this Court can address what to do if the debtor disputes the movant's calculations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Boaz Tribelsky Represented By Michael F Chekian
Movant(s):
Boaz Tribelsky Represented By Michael F Chekian Michael F Chekian Michael F Chekian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 04/05/18, 05/03/18, 06/07/18, 08/02/18, 08/30/18
Docket 40
Tentative Ruling for 9/27/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This matter has been continued since the initial 5/3/18 hearing to allow time for the parties to negotiate a resolution of the motion. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/3/18:
Appearances Required.
Issues:
Missing mandatory form F 3007-1.1NOTICE.OBJ.CLAIM. The debtor failed to file the mandatory form F 3007-1.1.NOTICE.OBJ.CLAIM as required by LBR 3007-1(b). The debtor is cautioned that failure to follow this Court's rules and procedures in future may result in adverse consequences.
The claim objection fails to include a sufficient cost/benefit analysis.
8:30 AM
Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
In this instance, it appears that the claim objection, if successful, would result in a benefit that exceeds the costs of counsel's fees. However, the debtor failed to include any analysis demonstrating that this is so. The debtor is cautioned that failure to follow this Court's rules and procedures in future may result in adverse consequences.
Evidentiary issues. The parties should address whether they have finished investigating the facts and either informally or formally exchanging information, and how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on a written record (to save costs, if all parties consent), or (iii) through mediation.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Felisa Dee Richards Represented By Eliza Ghanooni
Movant(s):
Felisa Dee Richards Represented By Eliza Ghanooni Eliza Ghanooni
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 08/30/18
Docket 20
Tentative Ruling for 9/27/18:
Grant (motion to disallow Claim No. 1 filed by Alexandra Sophia Rudoff). Counsel is authorized to apply for compensation for all work on this claim objection. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Declaration of Bryan
L. Ngo (dkt. 30) regarding cost benefit analysis of objecting to Claim No. 1 filed by Alexandra Sophia Rudoff.
Reasons: Alexandara Sophia Rudoff's Proof of Claim (dkt. 20, ex. 2) fails to provide this Court with sufficient evidence to give the claim prima facie validity.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/30/18:
Continue to 9/27/18 at 8:30 a.m. to address the following issues. Appearances are not required on 8/30/18.
8:30 AM
Reasons:
The claim objection fails to include a sufficient cost/benefit analysis. Judge Bason's posted Procedures (available at www.cacb.uscourts.gov) state:
When objecting to claims, be sure to consider whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%, your claim objection to any general unsecured claim should clearly explain how it is justified to incur the attorney fees for that objection.
No later than 9/13/18, the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees absent specific order. Counsel is prohibited from charging any fees on this matter (including all past, present and future work related to this claim objection) and is directed to return any fees that might be (or might have already been) awarded relative to this matter, unless this Court expressly states in a future adopted tentative ruling or written order that the cost/benefit analysis warrants charging fees.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rita M Fiora Represented By
8:30 AM
Trustee(s):
Bryan L Ngo
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 0
Continue to 10/25/18 at 8:30 a.m., with a response deadline of 10/18/18, for the reasons stated in the debtor's ex parte application to continue this hearing (dkt. 17). Appearances are not required on 9/27/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John A. Marrone Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
9:30 AM
Docket 0
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in this Court's order (dkt. 56) setting this hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Abraham Ibarra Represented By William R Ramsey
Joint Debtor(s):
Rosa Ibarra Represented By
William R Ramsey
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
9:00 AM
and Assign Unexpired Non-Residential Real Property Lease
[Presbytery Lease]
fr. 7/10/18, 7/16/18, 8/3/18, 9/20/18
Docket 351
Debtor(s):
Dana Hollister Represented By David A Tilem
Movant(s):
Dana Hollister Represented By David A Tilem
9:00 AM
[Presbytery Lease]
fr. 8/3/18, 9/20/18
Docket 457
Debtor(s):
Dana Hollister Represented By David A Tilem
10:00 AM
vs DEBTOR
Docket 56
- NONE LISTED -
Debtor(s):
Akop Dzhulakyan Represented By Vahe Khojayan
Movant(s):
Detroit Rehabilitation Initiatives, Represented By
Michelle R Ghidotti Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 91
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Steven A. Sanchez Represented By
James D. Hornbuckle
Joint Debtor(s):
Jeannie L. Sanchez Represented By
James D. Hornbuckle
Movant(s):
Bayview Loan Servicing, LLC., as Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FEDERAL NATIONAL MORTGAGE ASSOC
vs DEBTOR
Docket 109
- NONE LISTED -
Debtor(s):
Francisco Velasco Represented By Rebecca Tomilowitz
Joint Debtor(s):
Hilaria Velasco Represented By Rebecca Tomilowitz
Movant(s):
Federal National Mortgage Represented By Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 78
- NONE LISTED -
Debtor(s):
Paul Hoy Chou Represented By Peter M Lively
Joint Debtor(s):
Araceli Chou Represented By
Peter M Lively
Movant(s):
U.S. Bank National Association, as Represented By
Angie M Marth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
vs DEBTOR
Docket 88
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 90).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lashea Delown Baker Represented By
Rabin J Pournazarian
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 45
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Charles Smith Represented By William G Cort
Movant(s):
HSBC BANK USA, NATIONAL Represented By
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 63
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Martin Estrada Jimenez Represented By Anthony E Contreras
Joint Debtor(s):
Norma Isabel Cuevas Represented By Anthony E Contreras
Movant(s):
U.S. Bank National Association Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FEDERAL NATIONAL MORTGAGE ASSOC
vs DEBTOR
Docket 37
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Martin Medina Vargas Represented By Joshua R Engle
Movant(s):
Federal National Mortgage Represented By Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NA
vs DEBTOR
Docket 36
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Carlos David Andrade Represented By
Michelle A Marchisotto Craig K Streed
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Bubba Fangman Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 34
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the movant will agree to additional time for the debtor to reseach her payment history, (b) whether the alleged arrears have been brought current and/or (c) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Martha Perez Represented By
Thomas B Ure
Movant(s):
Nationstar Mortgage LLC Represented By
Melissa A Vermillion Darlene C Vigil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
vs DEBTOR
Docket 61
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Noe Cruz Represented By
Rebecca Tomilowitz
Movant(s):
Deutsche Bank National Trust Represented By Tyneia Merritt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 24
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Geri Lynne Thomas Represented By
D Justin Harelik
Movant(s):
The Bank of New York Mellon, et Represented By
Diana Torres-Brito Bonni S Mantovani
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST, NA vs
DEBTOR
Docket 10
Grant in part and deny in part as set forth below. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Section 362(d)(1): no relief. The movant ("US Bank") has not established sufficient cause for relief under 11 U.S.C. 362(d)(1), for the reasons stated by the Chapter 7 Trustee ("Trustee"). See dkt. 14.
Section 362(d)(2): no relief. US Bank apparently seeks relief under 11 U.S.C. 362(d)(2), notwithstanding Trustee's correct observation that not all of the appropriate boxes were checked on the form for seeking such relief. This Court finds and concludes that there was adequate notice that US Bank probably is seeking such relief. But in any event US Bank has not established that it is entitled to such relief.
True, this is a liquidation case so there cannot be any reorganization, which is one of the two elements of section 362(d)(2). But the burden is on US Bank to prove the other element: that Debtor lacks any equity in the property. See 11 U.S.C. 362(g). US Bank has not established that element, so it has not shown that relief must be granted under section 362(d)(2).
Moreover, Trustee has presented evidence that there is a substantial equity cushion. So even if US Bank had presented some evidence of a lack of equity (which it has not), Trustee has rebutted any such evidence.
Therefore, relief is not appropriate under section 362(d)(2).
Section 362(d)(4): limited relief. The tentative ruling is that US Bank has established every element of section 362(d)(4): it is a creditor with a
10:00 AM
claim secured by real property; the filing of the debtor's bankruptcy petition was the latest in a very long line of bankruptcy cases that were not prosecuted and therefore appear on their face to have had the purpose to hinder, delay, or defraud creditors in enforcing their rights and remedies; and that scheme involved an unauthorized transfer of the subject real property, and alternatively the scheme involved multiple bankruptcy cases. Therefore, under the plain meaning of the statute, this Court must grant relief (in some fashion) from the automatic stay.
The debtor's opposition argues that he was defrauded by the "foreclosure prevention" agents to whom he went for help (the "Agents"). This Court takes judicial notice that this is not an uncommon situation, and it is very unfortunate. See In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal.
2017) (Bason, J.). But, first, the debtor's argument does not take away from the fact that the movant was harmed by the type of scheme set forth in section 362(d)(4) and therefore the plain meaning of the statute is that this Court "shall" grant some form of relief (the type of relief is addressed below).
Alternatively, whatever harm the debtor's own Agents caused to him, he has not shown why it would be appropriate to shift that harm to US Bank. To the contrary, assuming without deciding that the debtor was entirely innocent of any participation in the scheme, he chose the Agents, and vested them with apparent authority, which they used to delay the foreclosure sale through dozens of bankruptcy filings. Therefore, assuming for purposes of discussion that the debtor was entirely ignorant of what his Agents were doing, he must bear the consequences of their acts rather than shifting those consequences to US Bank. Vazquez, 580 B.R. 526.
Appropriate form of relief
"Relief" from the automatic stay can take many forms: it is not limited to termination of the stay. In this case, the tentative ruling is that the appropriate relief is to issue an order providing (a) that no future bankruptcy case will have any effect on the subject property for a period of two years, as set forth in more detail in section 362(d)(4), and meanwhile (b) that in this current bankruptcy case the automatic stay should remain in place because US Bank is adequately protected by the equity cushion in the property and by Trustee's plans to market and sell the property.
In addition, the tentative ruling is that to the extent, if any, that the motion seeks to terminate the automatic stay in past bankruptcy cases, or cases other than this one that are currently pending, such relief is denied on
10:00 AM
the present record. But such denial is without prejudice to seeking such relief if the necessary procedures are followed. See In re Ervin (Case No. 14-bk- 18204-NB, docket no. 311).
Finally, the tentative ruling is to grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nicholas Andrew Colachis Pro Se
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Merdaud Jafarnia
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply.
This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re
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Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tom Kang Pro Se
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
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Trustee(s):
Edward G Schloss
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 9
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. Grant the motion under 11 U.S.C. 362(c)
(3) and (j): there is no automatic stay because (a) the debtor's prior case (# 2:18-bk-16697-SK) was dismissed (on August 6, 2018) within one year before this case was filed (on August 15, 2018), (b) that dismissal was not under 11
U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to the debtor in personam and as to property of the debtor. See In re Hernandez & Jiminez, Case No. 2:11-bk-53730-NB, Dkt 40.
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
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Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice, given that the motion sets forth how debtor herself has filed multiple bankruptcy cases.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Anabelia Alvarez Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [PP] SANTANDER CONSUMER USA, INC.
vs
DEBTOR
Docket 34
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Reina Teresa Lira Represented By Daniel A DeSoto
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 18
Deny. Appearances required to address whether the case should be dismissed (see Judge Bason's Procedures, posted at www.cacb.uscourts.gov, then search for "362(c)(3)").
Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling.
Reasons: The motion was not timely set for hearing in accordance with 11
U.S.C. 362(c)(3)(B) (providing that "on the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors . . . after notice and a hearing completed before the expiration of the 30 day period [after the petition date, i.e., August 15, 2018 + 30 days]." (emphasis added)).
No attorney fees: This court presumes that counsel for the debtor will not charge any fees for the time spent on this motion (because counsel knew or should have known of the earlier case and knew or should have known of the 30 day deadline). If counsel intends to charge any fees then the procedures must be followed to dispute this tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Anoush Aivazian Represented By Leo Fasen
Movant(s):
Anoush Aivazian Represented By Leo Fasen Leo Fasen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 14
Grant, subject to the following conditions. Appearances are not required.
Key documents reviewed (other than the motion papers): Order and Notice of Dismissal in Debtor's prior case (2:17-bk-19307-SK dkt. 23).
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lucia Camargo Represented By Tom A Moore
Movant(s):
Lucia Camargo Represented By Tom A Moore
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 12
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Darrell Rex Reese Represented By Stephen S Smyth
Joint Debtor(s):
Alicia C Reese Represented By Stephen S Smyth
Movant(s):
Darrell Rex Reese Represented By Stephen S Smyth
Alicia C Reese Represented By Stephen S Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 11
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gerardo Gonzalez Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Evelia Gonzalez Represented By
Ramiro Flores Munoz
Movant(s):
Gerardo Gonzalez Represented By
Ramiro Flores Munoz
Evelia Gonzalez Represented By
Ramiro Flores Munoz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 8
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robby Christopher Hilliard Jr. Represented By Scott Kosner
Movant(s):
Robby Christopher Hilliard Jr. Represented By Scott Kosner
Trustee(s):
Kathy A Dockery (TR) Pro Se
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JERSON ESTRADA
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's opposition to motion for relief from automatic stay (dkt. 42)
Limited relief. Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate. The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues. Any claims arising
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from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Additional analysis:
The tentative ruling is that mandatory abstention applies
The tentative ruling is that, although the trial in State Court likely will not be held as soon as it could be in this Bankruptcy Court, nevertheless it can be "timely adjudicated" within the meaning of 28 U.S.C. 1334(c)(2). In addition, it appears that the other elements of mandatory abstention apply.
This Court recognizes that the debtor may have various reasons why a trial in this Bankruptcy Court would be preferable. Bankruptcy procedures sometimes are more streamlined, less expensive, and faster, and in addition, if the debtor has not had sufficient resources to conduct as much discovery as would be preferable (or engage in other pretrial preparation) then the debtor might be at a disadvantage in going to trial in the State Court.
Nevertheless, those things would not necessarily carry the day for the debtor if this Court had any discretion (see below), and in any event mandatory abstention is just that - mandatory - so this Court does not discretion to decline to abstain.
Alternatively, the tentative ruling is to grant the motion because discretionary abstention and the traditional factors weigh slightly in favor of lifting the automatic stay to conduct the nonbankruptcy litiagation
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have
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examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Essentially the same factors have been applied in considering discretionary abstention under 28 U.S.C. 1334(c)(1).
Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that these factors weigh in favor of granting relief as set forth above. Most significantly:
the Superior Court is better situated to conduct a jury trial (as demanded in the movant's Complaint), and
this bankruptcy case was filed on the eve of trial in the State Court.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hossein Daneshvar Represented By Axel H Richter
Movant(s):
Jerson Estrada Represented By Joseph M Adams
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ALEXANDRA RUDOFF
vs DEBTOR
Docket 31
- NONE LISTED -
Debtor(s):
Rita M Fiora Represented By
Bryan L Ngo
Movant(s):
Alexandra Rudoff Represented By Tariq S Hasan
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JOSEPH MARTIN BARRETT
vs DEBTOR
Docket 108
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons: Movant has requested relief from the automatic stay for the sole purpose of serving the Chapter 7 Trustee, Howard M. Ehrenberg, with a First Amended Answer, Counterclaims and Crossclaims in the adversary proceeding captioned Advocate Capital, Inc. v. Maximum Legal (California) LLP, et al. (Adversary No. 2:17-ap-01503-NB) (dkt. 108). Movant is granted relief from the automatic stay for that sole and narrow purpose only.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maximum Legal (California), LLP Represented By
Martin J Brill Daniel H Reiss
10:00 AM
Movant(s):
Lindsey L Smith
Joseph Martin Barrett Represented By Damion Robinson
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer
10:00 AM
BANK OF AMERICA, NA
vs DEBTOR
Docket 38
Debtor(s):
Tiffany Ringo Represented By William J Smyth
Movant(s):
BANK OF AMERICA, N.A. Represented By Merdaud Jafarnia Luisa M Amador Bonni S Mantovani Asya Landa
Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK TRUST COMPANY AMERICAS
vs
DEBTOR (S)
Docket 40
Tentative Ruling for 10/2/18 (same as for 8/7/18 except telephonic appearances encouraged):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Victor Hugo Anaya Represented By Erika Luna
10:00 AM
Joint Debtor(s):
Nora Leticia Anaya Represented By Erika Luna
Movant(s):
Deutsche Bank Trust Company Represented By Sheereen Middleton Keith Labell
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF AMERICA, NA
vs DEBTOR
Docket 27
Tentative Ruling for 10/2/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 9/4/18 this Court was persuaded to continue this matter for the parties to attempt to negotiate an agreed adequate protection order.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jessica E Meza Represented By Peter L Lago
Movant(s):
Bank of America, N.A. Represented By
William F McDonald III Theron S Covey
James Edward McDaniel Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 46
Tentative for 10/2/18 (same as for 8/7/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 48).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David Lee Williams Represented By Vernon R Yancy
Movant(s):
U.S. BANK NATIONAL Represented By April Harriott
Matthew R. Clark III Sean C Ferry
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 57
Debtor(s):
Jose Favela Jr Represented By Rebecca Tomilowitz
Joint Debtor(s):
Joyce Favela Represented By
Rebecca Tomilowitz
Movant(s):
Lakeview Loan Servicing, LLC Represented By Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
KIA MOTORS FINANCE
vs DEBTOR
Docket 37
Debtor(s):
Bernice Wallace Represented By Laleh Ensafi
Movant(s):
Kia Motors Finance Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 7
Grant as provided below, subject to any opposition at the hearing pursuant to the order shortening time for this hearing (dkt. 10). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise
10:00 AM
ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Young Jong Pro Se
Movant(s):
PDN Retail Center, L.P. Represented By Daniel A Higson
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 13
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Matthew Peluso Represented By Jennifer Ann Aragon
Movant(s):
United States Trustee (LA) Represented By Kelly L Morrison
Trustee(s):
Elissa Miller (TR) Pro Se
11:00 AM
Docket 86
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Letitia Louise Wellington Represented By Sanaz S Bereliani
Movant(s):
Wesley H Avery (TR) Represented By Brett B Curlee
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
11:00 AM
Adv#: 2:18-01233 Pachulski v. Young et al
Docket 1
- NONE LISTED -
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Jeffrey Young Pro Se
Conal Doyle Represented By
M. Jonathan Hayes
Wilshire Law Firm, PLC Represented By
M. Jonathan Hayes
Babak Bobby Saadian Represented By
M. Jonathan Hayes
Neifert Khorshid Represented By
M. Jonathan Hayes
Plaintiff(s):
Richard M Pachulski Represented By James KT Hunter
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay
11:00 AM
James KT Hunter
11:00 AM
Adv#: 2:18-01152 Miller v. Abundo et al
§§ 3439.04(a)(1), 3439.07 and 3439.09; (2) To Avoid Transfer and Recover Fraudulent Transfer Pursuant to 11 U.S.C. §§ 544(b), 548(a)(1)(B), 550, Cal. Civ. Code §§ 3439.04(a)(2), 3439.07 and 3439.09; (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551; (4) For Imposition of Resulting Trust; (5) For Imposition of Constructive Trust; (6) To
Disallow Claim Pursuant to 11 U.S.C. § 502(d); and (7) For Turnover of Property of the Estate Pursuant to 11 U.S.C. § 542(a)
fr. 07/17/18
Docket 1
Debtor(s):
Anh Tuan Tran Represented By Randy Chang
Defendant(s):
Rodolfo Abundo Represented By Randy Chang
Susan Abundo Represented By Randy Chang
Kirsten Abundo Represented By Randy Chang
Plaintiff(s):
Elissa D Miller Pro Se
11:00 AM
Trustee(s):
Elissa Miller (TR) Represented By Jeffrey I Golden
1:00 PM
Docket 12
- NONE LISTED -
Debtor(s):
Harry Hildibrand LLC Represented By James P Lezie
Movant(s):
United States Trustee (LA) Represented By Dare Law
1:00 PM
Docket 39
- NONE LISTED -
Debtor(s):
Acquiplied Assets, B.T. Represented By Robert A Brown Stephen L Burton
Movant(s):
United States Trustee (LA) Represented By Dare Law
1:00 PM
Docket 10
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Reconsideration Motion (dkt. 27) re Order continuing automatic stay (dkt. 24). There is no tentative ruling.
Deadlines/dates. This case was filed on 8/29/18.
Bar date: 12/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: deadline TBD, using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/6/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saul Torres Bahena Represented By
1:00 PM
Michael R Totaro
1:00 PM
Docket 27
Please see the tentative ruling for the status conference (calendar no. 3, 10/2/18 at 1:00 p.m.).
Debtor(s):
Saul Torres Bahena Represented By Michael R Totaro
1:00 PM
Docket 98
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Reasons: Debtor's Counsel is cautioned to differentiate between time spent traveling to and from a hearing and time spent appearing at a hearing. (See dkt. 98 at 17). Judge Bason's procedures (posted at www.cacb.uscourts.gov) require that counsel may only bill for a maximum of 2 hours per day of non- working travel time absent an adequate explanation. Failure to differentiate between travel time and time appearing may result in a deduction of fees awarded.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
1:00 PM
Movant(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Sheila Esmaili Sheila Esmaili Sheila Esmaili Sheila Esmaili Sheila Esmaili Sheila Esmaili Sheila Esmaili
1:00 PM
(2720 Homestead Rd, Suites 210 & 220, Park City UT 84098)
fr. 12/12/17, 02/13/18, 5/22/18, 08/07/18
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 143
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
(2720 Homestead Rd, Suite 200, Park City UT 84098)
fr. 12/12/17, 02/13/18, 5/22/18, 08/07/18
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 144
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Docket 8
Tentative Ruling for 10/2/18:
Appearances required. There is no tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 46) and other relevant documents.
Failure to Serve Bar Date Order (dkt. 25). The order directs the debtor to serve all parties in interest no later than 7/16/18 but no proof of service appears on the docket. Why not? The tentative ruling is to set a new bar date of 12/7/18 (the debtor should not serve any notice at this time; this Court will prepare and issue the order after the hearing).
Application to Employ Hector Perez/Advantage Realty Group (dkt. 33). There is no tentative ruling, but the parties should be prepared to address (1) the issues raised in the opposition by Crescent Capital Holding LLC (dkt. 45); (2) whether the debtor is seeking to employ Mr. Perez, or Advantage Realty Group, or both; and (3) the absence of Local Form 2014-1 (required by Judge Bason's posted procedures, available at www.cacb.uscourts.gov).
1:00 PM
Deadlines/dates. This case was filed on 6/11/18.
Bar date: to be re-set see above.
Plan/Disclosure Statement*: TBD.
Continued status conference: 10/16/18 at 1:00 p.m., brief status report due 10/4/18
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Appearances required by counsel for the debtor and by the debtor itself.
Current issues. This Court has reviewed the debtor's status report (dkt. 18) and other relevant documents.
Status Report. Debtor used an old form of status report. Judge Bason's current posted procedures require the use of local form F 2081- 1.1.C11.STATUS.RPT. Counsel is directed to review Judge Bason's posted procedures and to use the appropriate form status report in future.
Motion for relief from automatic stay. There is no tentative ruling, but the debtor and Crescent Capital Holding LLC should be prepared to address the issues raised in the motion (dkt. 17) and debtor's response (dkt. 21) regarding the Las Flores property, including the previous grant of "in rem" relief against the property, and whether the debtor has provided sufficient evidence of insurance on the property.
Deadlines/dates. This case was filed on 6/11/18.
Bar date: 9/14/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/28/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
1:00 PM
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 9/18/18 at 1:00 p.m., brief status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Motiv8 Investments, LLC Represented By Kevin Tang
2:00 PM
fr. 8/2/18
Docket 113
Debtor(s):
Gloria Elisa Galvan Represented By Michael E Clark Nancy B Clark Barry E Borowitz
Movant(s):
Gloria Elisa Galvan Represented By Michael E Clark Michael E Clark Nancy B Clark Nancy B Clark Barry E Borowitz Barry E Borowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
(B) the Form, Scope, and Nature of Solicitation, Balloting, Tabulation, and Notices with Respect Thereto; and (C) Related Confirmation Procedures, Deadlines and Notices
fr. 09/18/18
Docket 341
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the papers pertaining to the plan proposed by creditors Mr. Britton and Ms. West (see dkt. 341-60) and particularly the issues of (1) impairment of Class 6, (2) compliance with 11
U.S.C. 1129(a)(5)(A), and (3) the possibility of a structured dismissal or alternative plan proposed by the debtor and Mr. Riggs.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
Movant(s):
Layne Leslie Britton Represented By Eric D Winston
2:00 PM
Shahin Rezvani Jennifer L Nassiri
2:00 PM
INGRID ALIET-GASS
vs DEBTOR
Docket 130
Tentative Ruling for 10/2/18:
Please see the tentative ruling for the case status conference (calendar no. 4, 10/2/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the case status conference (calendar no. 9, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Movant(s):
Ingrid Aliet-Gass Pro Se
2:00 PM
1/23/18, 02/13/18, 03/06/18, 4/17/18, 5/8/18,
6/26/18, 9/18/18
Docket 1
Tentative Ruling for 10/2/18:
Appearances required. There is no written tentative ruling, but this Court may give oral tentative rulings at the start of the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Continue all matters in this case that are set for today to 10/2/18 at 2:00 p.m.,
sua sponte. Appearances are not required on 9/18/18.
Tentative Ruling for 6/26/18:
Continue (1) the Status Conference and (2) the motion of Ms. Aliet-Gass for relief from the automatic stay to 9/18/18 at 2:00 p.m. to be concurrent with related hearings. Appearances are not required on 6/26/18.
Tentative Ruling for 5/8/18:
This court anticipates posting a tentative ruling at a later time. [NOTE: no tentative ruling was posted]
Tentative Ruling for 4/17/18:
2:00 PM
Continue (1) calendar nos. 5, 6 and 7 on today's calendar, and (2) the motion for relief from the automatic stay filed by Ingrid Aliet-Gass for herself and Western States International, Inc. (dkt. 130, the "R/S Motion") all as set forth below. Appearances are not required on 4/17/18.
Specifically, the tenative ruling is as follows:
Continue (a) the status conference in this bankruptcy case, (b) the status conference in adversary proceeding no. 2:17-ap-01326-NB, and (c) the debtor's motion to amend the complaint in that adversary proceeding (adv. dkt. 125, and see adv. dkt. 130, 131, 139, 142) to be concurrent with (d) the motion by the Bureau of Land Management ("BLM") to dismiss the separate adversary proceeding against it (no. 2:18-ap-01057-NB, adv. dkt. 7), which is currently scheduled for 5/8/18 at 2:00 p.m.
Continue the R/S Motion, which is currently set for 5/1/18 at 10:00 a.m., to the same date and time.
After this hearing date this Court will prepare an order continuing all of the foregoing matters and will serve it on the BLM, Aliet-Gass, and Western States International, Inc. at the addresses known to this Court, and that order will also direct the debtor to serve those parties and any other known parties with an interest in the foregoing matters.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: 7/10/17 and 1/26/18 (sufficiently served, dkt. 56, 60, 103, 107, 110, 111, 121, 123).
Plan/Disclosure Statement*: TBD.
Continued status conference: see above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Default judgment motion - Wilshee (adv. dkt. 140). Deny for lack of service. See dkt. 140 at PDF p.4 (serving defendant at "ENTER ADDRESS HERE").
Default judgment motion - JNDDC, LLC (adv. dkt. 135). Deny for lack of service. See dkt. 135, last two pages (defendant not listed in service list).
Default judgment motion - Flavio Rodriguez (adv. dkt. 133). Deny for lack of service. See dkt. 133 at PDF p.8 (marked up by someone - movant? - to show deficiencies in completion of proof of service) and dkt. 133 last two pages (defendant not listed on service list).
Default judgment motion - Jag Pathirana (adv. dkt. 134). Grant. It appears that plaintiff has abandoned claims against defendant Jag Pathirana other than "clearing title" to the plaintiff/debtor's alleged property interests at issue in the complaint. That appears to moot the relevant concerns previously raised by this court (see adv. dkt. 116, exhibit).
Case status report (case dkt. 122) and adversary proceeding against Bureau of Land Management (Adv. No. 2:18-ap-01057-NB). The debtor should be prepared to provide an update as to the status of these matters.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: 7/10/17 and 1/26/18 (sufficiently served, dkt. 56, 60, 103, 107, 110, 111, 121, 123).
Plan/Disclosure Statement*: TBD.
Continued status conference: 4/10/18 at 2:00 p.m., brief status report due 4/3/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status Reports (main case dkt. 122; adv. no. 2:17-ap-01326-NB, dkt. 132). The debtor/plaintiff suggests that it will be filing a motion to approve a disclosure statement. Is that premature, given the following issues?
Motion to amend complaint (adv. dkt. 125). The parties should be prepared to address the issues raised in the motion and in the oppositions filed by the California Department of Conservation, Division of Oil and Gas, and Geothermal Resources ("DOGGR") (adv. dkt. 125, 130, 131).
In addition, the debtor/plaintiff should be prepared to address whether the proposed amended complaint cures the deficiencies in the original complaint, and whether any ruling on the motion to amend the complaint should be deferred until after default judgments are (or are not) obtained on the existing (original) complaint, for the reasons set forth in this Court's Memorialization Of Reasons For Denying Motions For Default Judgments (captioned for the adversary proceeding but erroneously filed in the main case as dkt. 118). See also Order denying prior motions for defaul judgments (adv. dkt. 117) and subsequent Motions for default judgments (adv. dkt. 133, 134, 135).
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60, 103, 111, 121, 123); supplemental date of 1/26/18 (order served late, but the tentative ruling is to excuse that lateness, dkt. 107, 110).
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/20/18 at 2:00 p.m., status report
2:00 PM
due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue the status conferences in both the main case and the adversary proceeding (adv. no. 2:17-ap-01326-NB) to 2/13/18 at 2:00 p.m. with a status report due 2/6/18 (at which time other documents are also due as set forth below) for the reasons set forth below. Appearances are not required on 1/23/18.
Current issues
Reasons for continuance: (i) because of the problems noted below;
because of the debtor's untimely last-minute filing of status reports (the debtor is cautioned that continued untimely filings may result in sanctions);
because of the inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government, (iv) to be concurrent with the (improperly self-calendared) motion to amend the complaint, and (v) in view of the debtor's various status reports (main case dkt. 117, adv. dkt. 122, 127, 129).
Bar date. The debtor's proofs of service of the bar date order are missing exhibits and incomprehensible (see dkt. 110, 111). The debtor is directed to file, no later than 2/6/18, either a corrected proof of service or an application (supported by a declaration) to set yet another supplemental bar date - whichever is appropriate.
Status of existing complaint in adversary proceeding. On 11/20/17 this court issued an order (adv. dkt. 117) denying the plaintiff/debtor's motions for default judgments, without prejudice. The debtor now seeks to amend the complaint (adv. dkt. 125). All of these things moot the motions for default
2:00 PM
judgments so the hearings on those motions have been vacated.
In addition, the tentative ruling is to memorialize this court's reasons for denying the motions for default judgments by filing on the docket a copy of this court's adopted tentative ruling for the 11/14/17 hearings on those motions (reproduced within the tentative ruling for calendar no. 9. 1/23/18 at 2:00 p.m.).
Motion to amend complaint (adv. dkt. 125). This motion was self- calendared for 2:00 p.m. (a time that cannot be used for self-calendaring) on 2/13/18. Nevertheless, the tentative ruling is to permit that motion to proceed at that time.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60); supplemental date of 1/26/18, to be served no later than 11/15/17 (per Order, dkt. 107) but proofs of service are incomprehensible (dkt. 110, 111) - see above under "current issues".
Plan/Disclosure Statement*: TBD.
Continued status conference: as set forth above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the following issues.
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Current issues. The debtor has filed a second (very belated) proof of service (dkt. 103) of this court's order (dkt. 56) setting a bar date. Under that order the bar date was set as 7/10/17 and service was required no later than 5/8/17. What does the debtor's belated service do except cause confusion? Does the debtor require a new bar date for previously unknown creditors?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60; but see above under "current issues").
Plan/Disclosure Statement*: TBD.
Continued status conference: 1/30/18 at 2:00 p.m., status report due 1/16/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
The tentative ruling is to dismiss this case with a 180 day bar for willful failure to appear in proper prosecution, as set forth below. See 11 U.S.C. 109(g)(1). Appearances are not required.
Reasons: This case was filed on 11/23/16. The debtor's assets consist of disputed rights in hydrocarbon leases. See Status Report, dkt. 81. Realizing any value from those rights apparently depends on retaining special counsel who will diligently prosecute the debtor's claims. Despite numerous opportunities, the debtor has failed to satisfy the prerequisites for retention of special counsel.
Inadequate declarations about "connections"
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At the hearing on 7/11/17 this court extensively reviewed the evidence that would be required before this court could approve the application to employ the latest proposed special counsel, Mr. Montes. That included a requirement of detailed declarations from Mr. and Mrs. Hoats regarding any transfers of any property (including intangible property) involving the debtor and any of them, as well as any other "connections" (as that term is used in Rule 2014, Fed. R. Bankr. P.) to the debtor and any other party in interest.
This court recognizes that Mr. and Mrs. Hoats are not the professionals whose employment is being sought. Nevertheless, given their very close ties to the debtor, and their failure to disclose connections to the prior proposed special counsel that raised questions about conflicts of interest, this court orally ordered the debtor to provide their declarations at the hearing on 5/2/17. That order has been ignored.
Knudsen factors
This court also directed Mr. Montes to file a declaration addressing the factors that this court must consider in assessing his request to be paid more frequently than once every 120 days. See In re Knudsen, 84 B.R. 668, 672- 73 (9th Cir. BAP 1988). Mr. Montes has filed such a declaration (dkt. 82) and has adequately summarized the factors (id., p.3:15-23) but he has not adequately addressed the third factor, which he summarizes as: "any funds paid but later disapproved by the court can be recovered from the professional" in one or more of the ways listed in Knudsen. (Emphasis added.) Those ways are:
[a. Holdback] retainer payments are for only a percentage of the amount billed so that the likelihood or necessity of repayment is minimal [Mr. Montes suggests a 10% holdback, which has not been shown to be adequate - the typical amount is 20%, and that typically applies only to well established firms whose ability to repay funds is reinforced by the firm's longevity and reputation or similar considerations];
[b. Bond] counsel can post a bond covering any possible reassessment [Mr. Montes has not addressed this factor];
[c. Financial ability to repay] counsel's financial position makes it certain that any reassessment can be repaid [Mr. Montes has not addressed this factor]; [and/or]
[d. Hold funds in trust account] funds paid prior to allowance are held in a trust account until a final or interim fee allowance is made [Mr.
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Montes has only offered to place the 10% proposed holdback in a trust account]. [Knudsen, 84 B.R. 668, at 672]
The debtor appears to cite the wrong statutory authority
The debtor's application to employ Mr. Montes (dkt. 65) requests that his employment be approved under subsection "(e)" of 11 U.S.C. 327. But that subsection only applies by its terms to an attorney who "has represented the debtor" (i.e., prepetition counsel whose employment is to continue postpetition). Id. (emphasis added).
That is not the end of the analysis, because it has been held that special counsel can be employed even when such counsel has not represented the debtor prepetition. See In re Fondiller, 15 B.R. 890, 892 (9th Cir. BAP 1981) (emphasis added), appeal dism., 707 F.2d 441 (9th Cir.
1983). Although Fondiller has been interpreted as authorizing employment under subsection (e) (see, e.g., Covenant Fin. Group of Am., Inc., 243 B.R. 450, 455 & n. 8 (Bankr. N.D. Ala. 1999)), the precise holding of Fondiller appears to be that special counsel can be employed under subsection "(a)" of Section 327 because any "omission" in subsection "(e)" does not limit the general authority in subsection "(a)." See Fondiller, 15 B.R. at 891-92 (interpreting § 327(a) by comparison with §§ 327(c) and (e)).
True, the precise statutory authority appears to make little if any practical difference, because Fondiller held that when counsel is only employed to perform limited services, then an interest "adverse to the estate" means "an adverse interest relating to the services which are to be performed by that attorney," which appears to mean that the inquiry for proposed special counsel under subsection "(a)" is the same as under subsection "(e)." Fondiller, 15 B.R. at 892 (emphasis added). Mr. Montes' declaration (included in dkt. 65) appears to meet this test because he states that he has no adverse interest.
Nevertheless, as stated above this court has required additional evidence from Mr. and Mrs. Hoats and that evidence has not been provided. In addition, because the debtor has sought authority under subsection "(e)" instead of "(a)" it appears not have met the technical requirements for employment of Mr. Montes.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
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Tentative Ruling for 7/11/17:
Appearances required.
Current issues
Employment of special counsel. Deny the application to employ the Law Offices of M. Brian McMahon (dkt. 46) because he no longer intends to pursue employment. See dkt. 73, para. 3. Deny the application to emply the Law Offices of Mike Montes, Jr. (dkt. 65) due to the failure to address the issues raised by this court in the tentative ruling for 5/2/17 (reproduced below) (without reaching the issues raised by the U.S. Trustee's objection, dkt. 72, and the debtor's reply, dkt. 74). The U.S. Trustee is directed to lodge proposed orders denying each application within seven days after this hearing date.
Lack of progress. Should this case be dismissed for lack of prosecution?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/22/17 at 2:00 p.m., status report due 8/15/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Continue to 7/11/17 at 1:00 p.m. to allow the debtor time to prosecute an employment application regarding Mr. Motes (see debtor's case status report, dkt. 62). Appearances are not required on 6/13/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
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Tentative Ruling for 5/2/17:
Appearances required. There is no tentative ruling, but the debtor's proposed attorney, Brian McMahon Esq., should be prepared to address the concerns set forth in the U.S. Trustee's objection (dkt. 49) and the other issues set forth below.
Current issues.
Proposed special counsel.
Background. On 4/5/17 the debtor filed an application for authority to employ the law offices of Mr. McMahon as special counsel under 11 U.S.C. 327(e) (dkt. 47). On 4/12/17 the United States Trustee ("UST") filed an objection to the employment application, which expressed concerns about the payment arrangement proposed in the application (dkt. 49).
The debtor filed a statement of disinterestedness for Mr. McMahon (dkt.53), and a reply (dkt.55), stating that a third party, Ms. Lilian Hoats, will be paying the attorney fees for Mr. McMahon's representation. Ms. Hoats is the CEO of Inviron Technologies, Inc. ("Managing Member"), which is the debtor's managing member (dkt. 55, Ex.1, p.1, recital "b"). Attached to the reply (dkt. 55, Ex.1) is a written document that purports to be a waiver of conflicts (if any exist) among the debtor, Ms. Hoats, and the Managing Member (the "Hoats/Managing Member Conflict Waiver").
The Attorney-Client Retainer Agreement attached to the employment application (dkt. 46, Ex.1) provides that Mr. McMahon is representing not only the debtor but also its affiliates Riverwood Energy, LLC ("Energy Affiliate") and Riverwood Resources Ltd. ("Resources Affiliate"). This court is not aware of the precise organizational and contractual relationships among the debtor, Energy Affiliate, and Resources Affiliate, nor of any written document purporting to be a waiver of conflicts (if any exist) among them.
Statutory provisions and rules
Although special counsel does not have to be "distinterested" (compare 11 U.S.C. 327(a)), special counsel still must not "represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed." 11 U.S.C. 327(e) (emphasis added). Under Rule 2014 (Fed. R. Bankr. P.) both Mr. McMahon and the debtor were supposed to disclose all connections between Mr. McMahon and "the debtor, creditors, any other party in interest, their respective attorneys
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and accountants, the United States trustee, or any person employed in the office of the United States trustee."
The disclosures have not been adequate. This court does not know enough about the underlying litigation and the organizational and contractual relationships among the various entities to assess whether there may be conflicts of interest between the debtor, on the one hand, and Ms. Hoats, Managing Member, Energy Affiliate, and/or Resource Affiliate.
A DIP's conflicts generally cannot be waived
Any purported conflict waiver probably cannot waive actual conflicts.
See, e.g., In re Perry, 194 B.R. 875, 880 (E.D.Cal.1996) (waiver of conflict by non-debtor parties was insufficient and "[i]nformed consent could not be obtained" because "the real parties in interest in this case are the creditors, and that is not a waivable conflict"); In re B.E.S. Concrete Products, Inc., 93 B.R. 228, 235 (Bankr. E.D. Cal. 1988).
But while actual conflicts of interest create a violation of 11 U.S.C. 327 which would require disqualification of the proposed professional, the mere existence of a potential conflict of interest does not require disqualification, and it is up to the court's discretion whether the purported conflict is sufficiently threatening to the estate to warrant disqualification. In re Wheatfield Business Park, LLC, 286 B.R. 412, 421 (Bankr. C.D. Cal. 2002).
Are proposed counsel and the debtor aware of any actual conflicts?
How about potential conflicts?
The purported conflict waiver is incomplete
The Hoats/Managing Member Conflict Waiver is not actually signed by Ms. Hoats in her individual capacity (she has only signed it on behalf of the debtor's Managing Member). In addition, as noted above, this court is not aware of any purported conflict waiver among the debtor and Operating Affiliate or Resources Affiliate.
There might be conflicts among the debtor and Ms. Hoats A third party who funds a retainer for the debtor (the "Funder")
generally has some pre-existing relationship with the debtor, and/or some motivation to providing the funding. Those things increase the likelihood that the Funder could be the recipient of an avoidable preference, or might have alter ego liability, or otherwise might have interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a third party is not outright prohibited, it is fraught with ethical concerns. At the hearing, counsel for the
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debtor and proposed special counsel should be prepared to address the following.
Terms. What are the precise agreements, understandings or expectations regarding the funds -- e.g., are the funds a loan, a gift, an investment, or something else?
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and that the sole attorney-client relationship and duty of loyalty is with the debtor, not the Funder? Who provided such advice: independent counsel? counsel for the debtor? the debtor's proposed special counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing? Ms. Hoats has signed the Hoats/Managing Member conflict waiver on behalf of the debtor: how can she, acting for the debtor, waive conflicts with herself?
Other considerations. Has proposed special counsel demonstrated or represented to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Lotus Prop's LP, 200 B.R. 388 (Bankr. C.D. Cal. 1996) (rejecting per se disqualification when fees are paid by third party); and compare In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990) (per se rule). See generally In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/4/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status report. This court's previous tentative ruling (reproduced below) directed the debtor to file a status report by 3/14/17. Why has no such status report been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/7/17:
Continue to 4/4/17 at 2:00 p.m., status report due 3/14/17. No appearances are required on 2/7/17.
(1) Current issues
This case was filed on 11/23/16. The debtor's status report (dkt. 34) states that the debtor intends to retain special counsel, and the monthly operating reports (dkt. 37, 38) appear to show no activity other than opening DIP bank accounts and paying associated fees. Although progress in this case has been slow, it does not appear efficient to hold a status conference at this time. If substantially more progress is not shown by the next status
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conference, this court may dismiss this case for failure to appear in proper prosecution. See 11 U.S.C. 109(g)(1), 349.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Substitution of attorney. On 12/23/16, the debtor filed a substitution of attorney (dkt. 22) reflecting that current proposed counsel is Giovanni Orantes, Esq. Why has no employment application been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/13/16:
Appearances required.
Current issues
Counsel for the debtor should be prepared to address why no status
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report has been filed (see dkt. 3); why the docket does not reflect that anything has been done in this case to date; and why this court should not convert or dismiss this case.
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor and by the debtor(s) themselves, pursuant to the order setting this status conference (dkt. 3).
Current issues.
First Day Motions. The debtor should be prepared to address the necessity of first day motions such as cash collateral, payroll, utilities, etc. To the extent that those motions are necessary, why have they not yet been filed?
Deadlines/dates. This case was filed on 11/23/16.
Bar date*: to be set at the continued status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 12/13/16 at 2:00 p.m., initial status report due 11/29/16.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
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Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
Docket 36
Tentative Ruling for 10/2/18:
Please see the tentative ruling for the case status conference (calendar no. 4, 10/2/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Represented By
Kevin P VanLandingham
Movant(s):
Bureau of Land Management Represented By
Kevin P VanLandingham
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Luis A Solorzano
Giovanni Orantes
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Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
(2) Turnover Under 11 U.S.C. § 542 fr. 05/08/18, 06/26/18, 09/18/18
Docket 1
Tentative Ruling for 10/2/18:
Please see the tentative ruling for the case status conference (calendar no. 4, 10/2/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Represented By
Kevin P VanLandingham
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Luis A Solorzano
Giovanni Orantes
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Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
fr. 02/13/18, 03/06/18, 4/17/18, 5/8/18, 6/26/18, 9/18/18
Docket 125
Tentative Ruling for 10/2/18:
Please see the tentative ruling for the case status conference (calendar no. 4, 10/2/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the case status conference (calendar no. 9, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 7, 4/17/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
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Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
DOES 1 through 10, inclusive Pro Se
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
David Smushkevich Pro Se
Paul Guiller Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se
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Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Movant(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
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Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
3) Interfering with Economic Relationship; 4) Slander of Title;
5) Quiet Title; 6) Declaratory Relief
fr. 8/22/17, 11/14/17, 1/23/18, 02/13/18, 03/06/18, 4/17/18, 5/8/18, 6/26/18, 9/18/18
Docket 1
Tentative Ruling for 10/2/18:
Please see the tentative ruling for the case status conference (calendar no. 4, 10/2/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the case status conference (calendar no. 9, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 7, 4/17/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
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Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 8, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 11/14/17:
Appearances required. The tentative ruling is to deny the motions for default judgments, without prejudice, for the reasons set forth below, and to set a continued status conference for 1/30/18 at 2:00 p.m.
On the one hand, there appears to be successful prosecution of this adversary proceeding because, according to the plaintiff's status report (adv. dkt. 92), all of the defendants have either agreed to the requested declaratory relief or have defaulted. On the other hand, there are some fundamental issues that appear to prevent this court from granting default judgments at this time.
Self-calendaring error. The motions for default judgments were only served on 10/27/17. See, e.g., Motion for Default Judgment Derek Wilshee (dkt. 83, 74) (collectively, the "Wilshee Default Motion"). That is insufficient time prior to the hearing, under the applicable rules, nor was there any cover notice of the hearing date and deadline for any opposition or response.
Jurisdictional issues.
Personal jurisdiction. Does the complaint adequately establish personal jurisdiction over each defendant? At least one defendant is alleged to be a resident of Australia (dkt. 1, para. 14), although the plaintiff has voluntarily dismissed claims against that defendant (dkt. 107). Are each of the defaulting defendants subject to personal jurisdiction?
Subject matter jurisdiction, and abstention. The complaint and motions for default judgment make somewhat vague assertions of other action(s) that were or are pending in other courts apparently involving the same subject matter, and involving at least preliminary injunctive relief if not other relief. Can this Bankruptcy Court assume jurisdiction over matters that are pending in other courts? Must or should this Bankruptcy Court abstain?
Allegations of wrongdoing. Where is the analysis tying each of the
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defaulting defendants to one or more of the specific acts of wrongdoing bringing them within the claims in the complaint? For example, the only allegation in the complaint regarding Mr. Wilshee (dkt. 1, para. 14) appears to be that he was at one time an officer of the debtor. How is that an act of wrongdoing?
The Wilshee Default Motion seeks a default judgment against Mr.
Wilshee of $431,472,300.00 (dkt. 74, at PDF p.51 of 53). How is he responsible for such alleged damages? Does the complaint need to be amended to establish, as against one or more of the defaulting defendants, how they are alleged to be liable?
Calculation of damages. An exhibit to the plaintiff's motions for default judgments asserts that "Based on Department of Conservation Records [available on a website and/or verified by whom?], these leases [which leases? the ones that allegedly were supposed to be assigned but were not?] were producing 1730 barrels of Oil a day [when?]" and "[w]ith today's technology [how is today's technology better?], a conservative figure would be 3500 barrels a day [based on whose expert opinion?] that will be used as a figure for all the losses caused by Western States International [how about other defendants?]." Dkt. 83, Ex.A, at PDF p.17 of 53. The same exhibit shows a calculation of alleged damages based on "Approx Production" of "105,000" which is far more than 3500 barrels (perhaps using a 30-day presumptive month multiplied by 3500 barrels a day?), an "Average Oil Price [from what source?]," and a "Cost [to extract, market, refine, deliver, and sell the oil - or some other or different set of things? based on what expert's opinion?]." Based on the foregoing questions, and applying Rule 55(b)(2) (Fed. R. Civ. P.) (incorporated by Rule 7055, Fed. R. Bankr. P.), it appears that additional evidence and a "prove up" hearing will be needed to determine the amount of damages, if not other issues.
Alleged costs, attorney fees, and interest. The debtor/plaintiff asserts $1 million in costs (dkt. 74 at PDF p.51 of 53) - how is that possible? What are the components? Attorney fees are alleged to be $300,000 - this case has barely commenced, so how is that possible? Where are the daily time sheets and/or other support for this figure? Prejudgment interest is alleged to be at a 10% rate per year starting 1/1/11. What is the contractual or statutory basis for that interest rate and that commencement date? The purported damages
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were incurred month by month, so how can interest run from before those damages were incurred?
Declaratory relief. The plaintiff makes broad allegations about the rights under various contracts, or arising from breaches of those contracts or by operation of law. Where is the support for these allegations? The plaintiff cannot place the burden on this court to sort through numerous provisions of various contracts to piece together the plaintiff's theory. The plaintiff must provide specific, easy-to-follow analysis and evidence.
Conclusion. Because the motions for default judgments are both procedurally and substantively deficient in all of the ways set forth above, the tentative ruling is to deny them without prejudice.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. This court notes that the parties were directed to file a joint status report two weeks in advance of this hearing (dkt. 2), but have not done so. In addition, this court notes that the tentative ruling in the main case status conference (calendar no. 3, 8/22/17 at 2:00 p.m.) is to dismiss the main case, which normally would terminate this adversary proceeding.
Nevertheless, to preserve all rights in the event that this court were to be persuaded not to dismiss the main case, this court has reviewed the other filed documents and records in this adversary proceeding and issues the following tentative ruling.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties
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do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 6/19/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 1/12/18 Expert(s) - deadline for reports: 1/26/18
Expert(s) - discovery cutoff (if different from above): 2/9/18 Dispositive motions to be heard no later than: 3/2/18
Joint Status Report: 11/28/17
Continued status conference: 12/12/17 at 11:00 a.m. Trial deadlines to be determined at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By
2:00 PM
Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
DOES 1 through 10, inclusive Pro Se
David Smushkevich Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) Pro Se
Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
2:00 PM
Paul Guiller Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
3:00 PM
[Odyssesus Lease]
fr. 8/3/18, 9/20/18
Docket 457
Debtor(s):
Dana Hollister Represented By David A Tilem
3:00 PM
fr. 6/12/18, 6/22/18, 7/18/18, 8/3/18, 9/20/18
Docket 187
Tentative Ruling for 10/2/18:
Appearances required. There is no tentative ruling. The parties should proceed with their trial evidence and arguments.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
COPY OF COMBINED TENTATIVE RULING ON MOTION TO EXTEND TIME TO ASSUME OR REJECT LEASES AND MOTIONS TO ASSUME LEASES
Tentative Ruling for 9/20/18:
Appearances required. The parties should be prepared to address the issues raised in the filed papers regarding each of the three motions that are set for hearing today:
the Motion to assume the lease with Odyssesus Investment Group, LLC ("Odyssesus") of the property at 1356 Palmetto St., Los Angeles, at which the debtor operates Bridge Tavern, LLC dba Villains Tavern ("Villains") (dkt. 187, the "Motion re Odyssesus" and id. Ex.1, the "Odyssesus Lease") (the portion of this motion seeking to assign this lease is no longer relevant, see dkt. 501);
the Motion to assume the lease of the property at 1629 Griffith Park
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Blvd. and 1604 Edgecliffe Drive, Los Angeles with the Presbytery of The Pacific (the "Presbytery") (dkt. 351, the "Motion re Presbytery" and id.
Ex.A&B, the "Presbytery Lease") (the portion of this motion seeking to assign this lease apparently is no longer relevant because the proposed assignee has withdrawn), and
the Motion to extent the time under 11 U.S.C. 365(d)(4)(B) to assume and assign leases (or, potentially, reject leases), which expressly includes the lease of 1629 Griffith Park Blvd (dkt. 457, p.1:23-28) and also includes "any other leases" within the bankruptcy estate (id., p.4:2) (the "365
Motion").
This Court intends to begin the hearing by addressing with the parties whether they have reached any partial or complete resolution of their issues. If not, this Court intends to give a partial tentative ruling and then hear arguments.
The parties are encouraged not to repeat their arguments from the papers. Principal documents reviewed: Motion re Odyssesus (dkt. 187); Committee response (dkt. 269); Motion re Presbytery (dkt. 351); 365(d) Motion (dkt. 457); Odyssesus combined oppositions (dkt. 612); Presbytery opposition and response (dkt. 613, 614); Debtor's reply re Odyssesus (dkt. 618); Committee Joinders (dkt. 619-21); Agent's Reply re Presbytery (dkt. 623); Debtor's reply re Presbytery (dkt. 624); Agent's Reply re Odyssesus (dkt. 625); Settlement Agreement between debtor, Villains and Odyssesus (dkt. 188, Ex.1, and dkt. 337); Debtor's Insolvency Report (dkt. 312); the Term Sheet governing the Agent's duties and powers (dkt. 547 and 557). This Court has also reviewed various other documents, e.g., Odyssesus' initial Opposition to the debtor's proposed assumption and assignment of the Odyssesus Lease to Mr.
Bahmani and/or his assignee (dkt. 287), but such other documents have been largely superseded (e.g., by the withdrawal of Mr. Bahmani and the parties' shift in focus to the issues addressed in the above-referenced briefs).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/20/18:
Please see the tentative ruling for the status conference (calendar no. 1, 9/20/18 at 1:00 p.m.).
Tentative Ruling for 8/3/18:
Please see the tentative ruling for the status conference (calendar no. 4, 8/3/18 at 10:00 a.m.).
Tentative Ruling for 7/18/18:
Appearances required. There is no tentative ruling. The parties should be prepared to put on their evidence and make their arguments regarding adequate assurance of future performance. See Orders (dkt. 417, 473).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/22/18:
Please see the tentative ruling for the status conference (calendar no. 5, 6/22/18 at 10:00 a.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference (calendar no. 18, 6/12/18 at 3:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem
10:00 AM
OCWEN LOAN SERVICING, LLC
vs DEBTOR
Docket 48
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 50).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Miguel Serrano Represented By Cynthia Grande
Joint Debtor(s):
Sonia Serrano Represented By Cynthia Grande
Movant(s):
Ocwen Loan Servicing, LLC Represented By
Sheri Stein Charlse Keith Labell
10:00 AM
Trustee(s):
Seth Greenhill Jenelle C Arnold Sean C Ferry
Kathy A Dockery (TR) Pro Se
10:00 AM
MTGLQ INVESTORS, LP
vs DEBTOR
Docket 64
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
James Razumich Represented By Matthew D. Resnik
Movant(s):
MTGLQ Investors, LP Represented By Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA NATIONAL ASSOC
vs DEBTOR
Docket 63
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 67).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Jefferson Represented By Christopher J Langley Heidi M Cheng Steven P Chang
Joint Debtor(s):
Raquel Jefferson Represented By Christopher J Langley Heidi M Cheng Steven P Chang
10:00 AM
Movant(s):
HSBC Bank USA National Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 42
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 46, 49).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Catalina Mejorado Vicia Represented By Stella A Havkin
Movant(s):
HSBC Bank USA, National Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 51
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 53).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Victor Alvarez Represented By Erika Luna
Joint Debtor(s):
Dianna Alvarez Represented By Erika Luna
Movant(s):
JPMORGAN CHASE BANK, Represented By Joseph C Delmotte Kelsey X Luu
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 34
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Brian Camper Represented By Michael D Luppi
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Theron S Covey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 50
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Juan Jose Lozano Represented By
D Justin Harelik
Movant(s):
PennyMac Loan Services, LLC Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 42
- NONE LISTED -
Debtor(s):
Noemi R Santana Represented By Phillip Myer
Movant(s):
JPMorgan Chase Bank, National Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CHRISTINE A. JELINEK TRUST
vs DEBTOR
Docket 17
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
10:00 AM
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Katherine Ann James Pro Se
Movant(s):
Christine A. Jelinek Trust, Christine Represented By
Martin W. Phillips
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 15
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
10:00 AM
exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is insufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Flavia Salazar Pro Se
Movant(s):
Wells Fargo Bank NA Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JEFFREY S. GOPEN
vs DEBTOR
Docket 5
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply.
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) the debtor's prior case (#2:17-bk-23013-NB) was dismissed (on November 8, 2017) within one year before this case was filed (on September 4, 2018), (b) that dismissal was not under 11 U.S.C. 707(b), and
no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to the debtor in personam and as to property of the debtor. See In re Hernandez & Jiminez, Case No. 2:11-bk-53730-NB, Dkt 40.
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is
10:00 AM
denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Julia A Escudero Pro Se
Joint Debtor(s):
Raul Rivera Pro Se
Movant(s):
Jeffrey S. Gopen, an unmarried man, Represented By
Edward T Weber
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 9
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Herbert Represented By Elena Steers
Movant(s):
Michael Herbert Represented By Elena Steers
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 12
Grant, subject to the following conditions, and also subject to the reservation of rights by creditor Poser Investments, Inc. regarding the priority of its judgment lien and other disputes with the debtors (dkt. 22). Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
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HOMEOWNERS ASSOCIATION OF THE TERRACE
vs DEBTOR
Docket 28
Grant in part and deny in part, as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's opposition to relief from stay motion (dkt. 29) and the movant's reply (dkt. 31).
Limited relief. Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed to exercise all contractual and legal remedies, including proceeding in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate. Although the movant may seek and obtain possession of the permises, the movant may not sell the premises to collect any monetary judgment against the debtor, or otherwise collect except through this bankruptcy case as long as the automatic stay continues. In other words, the stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in
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accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues. Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Reasons for Denial in Part:
The first form of relief Movant requests is in essence affirmative injunctive relief. Movant has requested that the Court issue an order that Debtor provide Movant with immeidate access to the property (dkt. 28). Pursuant to Rule 7001(7) (Fed. R. Bankr. P.), a proceeding to obtain injunctive relief is an adversary proceeding. While Movant presents legal claims that might warrant injunctive relief, the current proceeding is the main bankruptcy proceeding, and thus injunctive relief cannot be granted.
In the alternative, Movant requests that the Court grant emergency relief from the automatic stay so that Movant may pursue a civil suit against the Debtor (dkt. 28). Pursuant to 11 U.S.C. 362(f), upon request of a party in interest the Court shall grant relief from the stay as is necessary to prevent irreparable damage to the interest of an entity in property, if such interest will suffer such damage before there is an opportunity for notice and a hearing. Rule 4001(a)(2) (F. R. Bankr. P.) further provides that ex parte relief from the automatic stay may be granted without prior notice, but it must be clearly apparent from specific facts shown by affidavit or verified motion that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition. Here, although the alleged garbage, roach infestation, animal urine, and other issues certainly appear to warrant an expedited hearing, they do not appear to pose such a threat of imminent and irreparable damage as to warrant granting relief
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without any opportunity for Debtor to be heard.
In sum, the tentative ruling is that although Movant has not established that relief should be granted without an opportunity for Debtor to be heard, the tentative ruling is also that Movant presented more than enough evidence to grant relief from the automatic stay. Further, Movant has shown that there is cause for waiving the 14-day stay proscribed by 4001(a)(3) (Fed. R. Bankr. P.)
Additional analysis:
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for
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trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that these factors weigh in favor of granting relief as set forth above. Most significantly,
Movant has a made a sufficient showing that the "balance of hurt" tips sharply in favor of granting relief. The apparent harm to Movant, and the other homeowners whom Movant represents, appears to outweigh by far any interest Debtor may have in continuing her current use of the premises (factor 12)
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jennifer Marie Spargifiore Represented By Charles J Brash
Movant(s):
Homeowners Association of the Represented By Patricia Brum
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 83
Debtor(s):
William Randolph Smith Jr Represented By Ali R Nader
Joint Debtor(s):
Mildred Joy Smith Represented By Ali R Nader
Movant(s):
William Randolph Smith Jr Represented By Ali R Nader
Mildred Joy Smith Represented By Ali R Nader
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 67
Appearances required. There is no tentative ruling, but the parties should be prepared to address the status of the dispute described in Debtor's motion for order enforcing the automatic stay and request for order to show cause (dkt. 67) the reply of Highland Haciendas Home Owners Association (dkt. 68), and the declaration from Debtor's tenant (dkt. 73/74).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gerald Edward Young Represented By Erika Luna
Movant(s):
Gerald Edward Young Represented By Erika Luna Erika Luna Erika Luna
Trustee(s):
Kathy A Dockery (TR) Pro Se
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REDIGER INVESTMENT MORTGAGE FUND, LLP
vs DEBTOR
Docket 38
Debtor(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Movant(s):
Rediger Investment Mortgage Fund Represented By
Misty A Perry Isaacson
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:16-01008 Forrest Fykes, SR et al v. Armen Janian
11 U.S.C. section 523(a)(6)
fr. 7/19/16, 12/13/16, 05/02/17, 09/12/17, 2/27/18, 6/12/18
Docket 1
Tentative Ruling for 10/9/18:
The plaintiff mis-filed the status report in the main case (main case dkt. 42) instead of this adversary proceeding. The plaintiff also failed to lodge a proposed order continuing this matter (using this Court's "LOU" program), and instead attached it to the status report.
Notwithstanding these errors, the tentative ruling is to continue this Status Conference to 12/18/18 at 11:00 a.m. Plaintiff is directed to file the next status report in this adversary proceeding (not in the main case) no later than 12/4/18. Appearances are not required on 10/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This matter has been continued multiple times (see tentative rulings reproduced below, and see Order, adv. dkt. 18). At the 2/27/18 hearing, this court further continued the hearing to today's date and directed plaintiff to
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give written notice. No such notice appears to have been filed on the docket. Why not?
There is no tentative ruling, but the parties should be prepared to address the issues described in the tentative ruling for 2/27/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Appearances required. At the hearing on 5/2/17 this court was persuaded to continue this matter to 9/12/17. This matter was further continued to today's date (see Order, adv. dkt. 18).
There is no tentative ruling, but the parties should be prepared to address (1) the results of their mediation, (2) whether to continue this status conference a short time (for finalization of any settlement) or a long time (far enough ahead that the parties can litigate their issues in State Court, which then presumably will have a partially or fully preclusive effect on any nondischargeability issues before this court), and (3) any other matters appropriate to address at this status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/2/17:
Appearances required. At the hearing on 12/13/16 this court was persuaded
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to continue this matter to today's date, with a deadline of 4/11/17 to complete mediation (see adv. dkt. 13 (mediation order)).
There is no tentative ruling, but the parties should be prepared to address (1) the results of their mediation, (2) whether to continue this status conference a short time (for finalization of any settlement) or a long time (far enough ahead that the parties can litigate their issues in State Court, which then presumably will have a partially or fully preclusive effect on any nondischargeability issues before this court), and (3) any other matters appropriate to address at this status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/13/16:
Continue to 2/7/17 at 11:00 a.m. at which time this court anticipates addressing, in view of the State Court's determinations as to pending matters, what trial date and other deadlines to set. Appearances are not required on 12/13/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 7/19/16:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following issues:
Failure to file a status report. Why did the plaintiff not file a status report updating the Court as to the status of the pending state court litigation (adv. dkt. 4)? Should this Court issue an order to show cause based on plaintiff's disregard of this Court's order?
Status of the state court litigation. What is the status of the state court litigation?
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Continued status conference. Assuming that the state court litigation is still pending, this Court intends to set a continued status conference for 11/8/16 at 11:00 a.m. The plaintiff must file a brief status report detailing the current status of the state court litigation by 10/25/16.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Armen Janian Represented By Leon Nazaretian
Defendant(s):
Armen Janian Represented By
Leon Nazaretian
Plaintiff(s):
Forrest Fykes, SR Represented By Michael D Anderson Leon Nazaretian
Valerie Fykes Represented By
Michael D Anderson
Forrest Fykes JR Represented By Michael D Anderson
Melissa Fykes Represented By Michael D Anderson
Trustee(s):
David M Goodrich (TR) Pro Se
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Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18
Docket 1
Tentative Ruling for 10/2/18:
Continue to 11/6/18 at 11:00 a.m., based on reports from the mediator and the parties (adv. dkt. 48-50). Brief status report due 10/30/18. Appearances are not required on 10/2/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Continue to 10/9/18 at 11:00 a.m. Brief status report due 9/25/18. Appearances are not required on 8/14/18.
This Court has reviewed the plaintiff's status report (adv. dkt. 41) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. docket number(s) 22, and at the hearing on 12/19/17).
Deadlines: This adversary proceeding has been pending since 4/7/17. Those deadlines that are appropriate to set at this point have been set. See
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Order (adv. dkt. 45).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Mediation. What is the status of the parties' mediation (see Order, adv. dkt. 36).
Deadlines: This adversary proceeding has been pending since 4/7/17. This Court was persuaded at the prior status conference not to set new deadlines until after mediation. If the matter has not been resolved then the tentative ruling is to set a continued status conference for 8/14/18 at 11:00 a.m., with a brief status report due 7/31/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This Court has reviewed the parties' joint status report (dkt. 35).
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Mediation. The parties' latest status report requests mediation. See adv. dkt. 35, p.3, section E.3. This request is puzzling.
At the 2/27/18 status conference, this Court set a deadline of 3/13/18 for the parties to lodge a proposed mediation order, which was later memorialized in a written order (adv. dkt. 33, 1st ordering paragraph adopting attached tentative ruling for 2/27/18, para. "(2)"). No such proposed mediation order was ever lodged with this Court. This is not the first time that the have ignored this Court's order regarding mediation (see tentative ruling for 2/27/18, para. "(1)," reproduced below).
The tentative ruling is to sanction both counsel $200 for repeatedly disregarding this Court's orders regarding mediation, and to set yet another deadline - 5/15/18 - for the parties to lodge a mediation order. The parties are cautioned that continued disregard of this Court's orders will result in more serious sanctions and/or other consequences.
Deadlines: This adversary proceeding has been pending since 4/7/17. This Court previously has set deadlines (adv. dkt. 29, exhibit, adopting tentative ruling for 1/30/18, para. "(2)"): e.g., a discovery cutoff of 5/1/18. The parties appear to have ignored those deadlines.
Their latest status report states (adv. dkt. 35, p.2, section B.3.) that they both expect to complete discovery by "July, 2018," i.e., after the discovery 5/1/18 cutoff. The parties' discovery schedule also appears to be incompatible with this Court's order regarding the 6/26/18 deadline for dispositive motions to be heard. See adv. dkt. 29.
Neither party has requested an extension of the deadlines previously ordered by this Court (either formally, by motion, or even informally in the status report). In setting deadlines this Court has attempted to apply a careful analysis of the parties' legal theories and factual allegations, the parties' status reports, this Court's available hearing dates, how much time might be needed for mediation, and other matters. Disregarding this Court's orders requires additional work by this Court to re-determine deadlines and/or address the consequences of missed deadlines.
The tentative ruling is to sanction both counsel $100 for ignoring this Court's previously ordered deadlines (with a caution, again, that continued disregard of this Court's orders may lead to greater adverse consequences). The tentative ruling is also to set a deadline of 5/15/18 for the parties to lodge
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a proposed agreed order setting realistic, binding new deadlines. Finally, the tentative ruling is to set a continued status conference for 5/22/18 at 11:00 a.m., the sole anticipated purpose of which will be to address whether the parties have complied with this Court's latest directions (set forth above) and, if not, to address what sanctions to impose. The parties are directed not to file any status report in advance of that status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 5/8/18 at 11:00 a.m. with a brief status report due 4/24/18. Appearances are not required on 2/27/18.
Background. This adversary proceeding has been pending since 4/7/17, and is being jointly administered with Adv. No. 2:17-ap-01551 - all papers are to be filed in this adversary proceeding (adv. dkt. 26). The discovery cutoff and some other deadlines have been set, but no trial date or pretrial conference date has yet been set (adv. dkt. 29). Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 29). This Court previously ordered mediation (adv. dkt. 17) but at the status conference on 12/19/17 the parties reported that they had failed to comply with that order and the parties' latest status report (adv. dkt. 31) requests that they ordered to mediation again.
Mediation. The tentative ruling is to set a deadline of 3/13/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required. The court has reviewed the parties' joint status report (adv. dkt. 24) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (docket number(s) 22, and at the hearing on 12/19/17).
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/13/18
Continued status conference: 2/27/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Trial date and pre-trial schedule: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 12/19/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the status of this adversary proceeding.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 12) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the
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parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 4/7/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/6/17. Expert(s) - deadline for reports: 11/20/17
Expert(s) - discovery cutoff (if different from above): 12/4/17 Dispositive motions to be heard no later than: 1/25/2018 Joint Status Report: 12/5/17
Continued status conference: 12/19/17 at 11:00 a.m. Trial date and pre-trial schedule: To be set at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C Vanderhoof
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18
Docket 1
Tentative Ruling for 10/2/18:
Continue to 11/6/18 at 11:00 a.m., based on the parties' status report (adv. dkt. 37). Brief status report due 10/30/18. Appearances are not required on 10/2/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The court has reviewed the parties' joint status report (adv. dkt. 23) and the other filed documents and records in this adversary proceeding.
The plaintiff states (dkt. 23, p.2) that he requested entry of a default against defendants Andrae Perez and Accelerated Capital Group, Inc., but the Clerk of this Court has issued notices of non-entry of defaults (dkt. 15, 16). When will the plaintiff correct the deficiencies?
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority
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have been determined and/or waived or forfeited (adv. docket number(s) 23).
Deadlines: This adversary proceeding has been pending since 11/21/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 12/31/18 Expert(s) - deadline for reports: 1/14/19
Dispositive motions to be heard no later than: 2/11/19 Joint Status Report: 9/4/18
Continued status conference: 9/18/18 at 11:00 a.m.; brief status report due 9/4/18.
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing, this Court continued the matter to allow the parties time to meet and confer about the various deadlines that this court should set in this adversary proceeding and/or court-ordered mediation. This matter was further continued to today's date for the parties to participate in mediation on or about 5/21/18 (see Order, adv. dkt. 21). This Court also directed the parties to file a status report by 5/29/18, but the parties have not done so--for a second time.
There is no tentative ruling, but the parties are directed to address why they have not filed a status report, and to provide an oral status report, and
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are cautioned that continued failure to adhere to the applicable rules and orders of this Court may result in sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing, this Court continued the matter to allow the parties time to meet and confer about the various deadlines that this court should set in this adversary proceeding and/or court-ordered mediation. This court also directed the parties to file a status report by 4/3/18, but the parties have not done so.
There is no tentative ruling, but the parties are directed to address why they have not filed a status report, and to provide an oral status report, and are cautioned that continued failure to adhere to the applicable rules and orders of this Court may result in sanctions. The tentative ruling is to continue this status conference to 5/29/18 at 11:00 a.m. with a brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties requested a brief continuance of this status conference from 2/27/18 to today's date (see Joint Status Report, adv. dkt. 10). At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). There is no tentative ruling, but the parties should be prepared to discuss the status of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 3/6/18 at 11:00 a.m. Appearances are not required on 2/27/18.
Reasons: At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). The plaintiff and one defendant (the debtor) have now filed a joint status report (adv. dkt. 10) requesting a brief continuance.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 1/23/18:
Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address why they failed to file the required status report, and also the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/6/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines/dates: This adversary proceeding has been pending since 11/21/17. The tentative ruling is to set the following deadlines/dates. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a
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copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/6/18
Continued status conference: 2/27/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
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Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:18-01212 Graner et al v. DeCoster et al
fr. 9/4/18
Docket 1
Tentative Ruling for 10/9/18
Appearances required, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address why neither party has lodged a mediation order (via this Court's "LOU" program) as required by the adopted tentative ruling for 9/4/18. Cf. adv. dkt. 7 (belated request for mediation).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18
Appearances required. The court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority. The parties are directed to address any
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outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 9/10/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 6/22/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/27/18. Expert(s) - deadline for reports: 12/4/18
Expert(s) - discovery cutoff (if different from above): 12/11/18 Dispositive motions to be heard no later than: 12/18/18.
Joint Status Report: n/a
Continued status conference: 10/9/18 at 11:00 a.m.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Defendant(s):
Douglas Lawrance DeCoster Pro Se
Elsa Diane DeCoster Pro Se
Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
Plaintiff(s):
Kieran Graner Represented By Stephen B Goldberg
Sharon Graner Represented By Stephen B Goldberg
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
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11 U.S.C. Sec. 1115
Docket 11
Grant on an interim basis, with a continued hearing on 11/6/18 at 1:00 p.m., and a deadline 10/23/18 for the debtors to file their declarations addressing
(1) whether their charitable contributions of $703/mo. are consistent with past levels of charitable giving (with attached evidence) and (2) how they will turn their Yorkshire Way rental property into a cash-flow-positive property. Appearances are not required on 10/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
Movant(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
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Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
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11 U.S.C. Sec. 1115
Docket 49
Please see the tentative ruling for the status conference (calendar no. 4, 10/9/18 at 1:00 p.m.).
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
Movant(s):
Nandini Mariwala Savin Represented By Alla Tenina
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 50
Please see the tentative ruling for the status conference (calendar no. 4, 10/9/18 at 1:00 p.m.).
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
Movant(s):
Nandini Mariwala Savin Represented By Alla Tenina
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 30
Revised Tentative Ruling for 10/9/18:
Appearances required.
Current issues
Budget motion (dkt. 49). Without prejudice to any later assertion by any party in interest that the debtor's proposed expenses are not in fact "ordinary course," the tentative ruling is to grant the budget motion based on the debtor's declaration (dkt. 76) in response to the questions raised in this Court's order (dkt. 69).
Employment application for Tenina Law, Inc. (dkt. 50, 52, 53). Proposed counsel for the debtor should be prepared to address whether the declarations (dkt. 77, 79) in response to this Court's order (dkt. 67) can be interpreted broadly enough to address all "connections" that are required to be disclosed under Rule 2014 (Fed. R. Bankr. P.).
For example, this Court's order (dkt. 67, p.3:6-7) asked "have there been" - i.e., in the present or past - any economic or business or personal transactions between the Funder/Donor and the debtor. In response, the debtor declares (dkt. 67, para. 7), "[m]y Donor does not have any business or economic transaction with me ...." (Emphasis added.)
Another concern in that both proposed counsel and Debtor appear to be under the mistaken impression that Debtor could, if necessary, waive conflicts. That is not possible, because Debtor is acting not just for herself but as a trustee for the benefit of all creditors.
Another concern is that there is no indication that Donor has been fully apprised of this Court's concerns.
The tentative ruling is that, before this Court issues any order approving the application, counsel must file Debtor's supplemental declaration (i) quoting Rule 2014 in full, (ii) confiming that there are no "connections" within the meaning of that Rule, except for Donor's friendship
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with Debtor, (iii) confirming that Debtor understands that (pursuant to this Court's conclusion of law) any conflicts that might turn out to exist cannot be waived, and (iv) confirming that Debtor has provided to Donor a copy of this Court's order (dkt. 67) and the responsive declarations (dkt. 77, 79, and the declaration described in this paragraph). Subject to the foregoing, and the terms of the stipulation with the United States Trustee (dkt. 58), the tentative ruling is to approve the application.
Proposed orders. Whatever this Court's rulings on the foregoing issues, Debtor is directed to lodge proposed orders via LOU within 7 days after the hearing date, and attach a copy of these tentative rulings, thereby incorporating them as this Court's final rulings, except as modified on the record. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 5/29/18 and converted from chapter 13 on 8/8/18.
Bar date: 11/9/18 (dkt. 55), timely served (dkt. 59).
Plan/Disclosure Statement*: file by 12/23/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/6/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 9/4/18:
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Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 5/29/18 and converted from chapter 13 on 8/8/18.
Bar date: 11/9/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 12/23/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Grant application for hearing on shortened time (see evidence of service, dkt. 31, 33). There is no tentative ruling on the motion to vacate dismissal of this chapter 13 case with a 180-day bar, so as to permit the debtor to pursue chapter 11 relief either in this case or by filing a new case. The parties should be prepared to address any opposition at the hearing. See Order Shortening Time (dkt. 28). Appearances required.
Key documents reviewed (in addition to motion papers): Application for order shortening time (dkt. 26) and evidence of service (dkt. 31, 33).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
Movant(s):
Nandini Mariwala Savin Represented By Alla Tenina
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 27
Please see the tentative ruling for the proposed stipulation regarding the use of cash collateral (calendar no. 6, 10/9/18 at 1:00 p.m.).
Debtor(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
Movant(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
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Docket 32
Revised Tentative Ruling for 10/9/18:
Grant the motion, as revised (dkt. 32, revising dkt. 27) on an interim basis, subject to the conditions set forth below, with a final hearing on 11/6/18 at 1:00 p.m., and a deadline of 10/12/18 for the movant to file and serve a notice of the final hearing. Appearances required.
Special conditions
Local Form F 4001-2.STMT.FINANCE. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) require the use of this form. In any event, the motion does not follow the format required by Rule 4001(b)(1)(B), (c)(1)(B) & (d)(1)(B) (Fed. R. Bankr. P.) whereas the Local Form does. The tentative ruling is to set a deadline of 10/12/18 to file and serve this form.
Challenges to perfection, validity, extent of Bank's liens. The tentative ruling is, at least on an interim basis, to authorize the use of Bank's cash collateral subject to parties other than the debtor having a period of 90 days from the latter of (a) the date of service of the motion or (b) the appointment of any committee or trustee to assess the validity, priority, and extent of the Bank's liens. Compare Stipulation (dkt. 32, Ex.2, section 8(b)) (later of 10/31/18 or 45 days following appointment of trustee or committee).
Service of the motion. The proof of service (dkt. 32, last two pages) reflects service on the persons listed in Rule 4001(b)(1)(C) & (d)(1)(C), but the parties should be prepared to address the source of the addresses for the purported secured creditors.
506(c). The tentative ruling is that the waiver of rights under 11
U.S.C. 506(c) is inapplicable to emergency situations in which Debtor lacks enough time to seek authorization to use cash collateral outside of the stipulation. For example, if the debtor were to expend funds putting out a fire
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that would damage Bank's non-cash collateral, that might be compensable under section 506(c) notwithstanding the lack of prior authorization from Bank to expend cash collateral in that manner.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form F2081- 1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents
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and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506 (c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the
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case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
Movant(s):
State Bank of India (California) Represented By Christopher D Crowell
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Docket 14
Revised Tentative Ruling for 10/9/18:
Appearances required.
Current issues.
Cash collateral. The tentative ruling is to authorize the use of cash collateral as set forth in the tentative ruling for calendar no. 6 (10/9/18 at 1:00 p.m.).
Insider compensation. Local Bankruptcy Rule ("LBR") 2014-1(a) requires a notice and opportunity to object before any insider compensation is paid. But no such notice has been filed, and Debtor's Monthly Operating Report ("MOR") for the month ending 8/31/18 reflects payments to each of two insiders. Dkt. 34, at PDF p.8. The tentative ruling is to direct Debtor to serve the notice using the local form no later than 10/12/18.
Bar date. On 9/5/18 this Court entered its "Order Setting Bar Date: November 9, 2018; and Directing Service by Debtor." Dkt. 24. The debtor failed to serve that order. Why? The tentative ruling is to issue an amended order setting a bar date as set forth below.
MOR (dkt. 34). The MOR appears to be incomplete. For example, it refers to multiple accounts but appears to provide only a combined report; many of the entries are vague or have no description; and page one includes a reference to "Non DIP personal checking (see attached letter)" but no letter or any other explanation is attached. The tentative ruling is to set a deadline of 10/15/18 to file an amended MOR correcting these and any other deficiencies.
Employment (dkt. 25). As highlighted by the objection of the United States Trustee ("UST") (dkt. 28), the parties should be prepared to address
(a) the proposed $12,000 flat fee under 11 U.S.C. 328 and (b) the source of the "loan" for $10,000 of that fee (dkt. 25, p.8) and the source of the remaining $2,000 plus the filing fee.
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Deadlines/dates. This case was filed on 8/2/18.
Bar date: See above. In view of Debtor's failure to serve the order (dkt.24), the tentative ruling is to issue an amended order setting a bar date of 12/28/18 and directing the debtor to serve that order no later than 10/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD.
Continued status conference: 11/6/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 9/4/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 8/2/18.
Bar date: 11/9/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 12/23/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
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Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
1:00 PM
Docket 39
Please see the tentative ruling for the status conference (calendar no. 9, 10/8/18 at 1:00 p.m.).
Debtor(s):
Acquiplied Assets, B.T. Represented By Robert A Brown Stephen L Burton
Movant(s):
United States Trustee (LA) Represented By Dare Law
1:00 PM
Docket 1
Revised Tentative Ruling for 10/9/18:
Appearances required. The tentative ruling is to convert this case to chapter 7 pursuant to 11 U.S.C. 1112(b), due to the apparent conflicts of interest of the debtor's principal, Mr. Brown, with the interests of creditors. See Motion by UST (dkt. 39), Joinder by Allstar Fin. Svcs., Inc. (dkt. 62). Although Debtor asserts (dkt. 58) that a number of issues identified by the UST have been addressed, the opposition does not adequately address the alleged conflicts of interest. In addition, the issues identified in this Court's tentative ruling for 10/9/18 (reproduced below) have not been adequately addressed. In addition, this Court's order (dkt. 47) directed Debtor not to serve a notice of bar date and instead to serve a copy of that order itself, no later than 9/7/18, but Debtor disregarded that order and served its own notice (dkt. 51) on 9/16/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 9/4/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
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Current issues
Failure to serve order. This Court's status conference order (dkt. 9, para.5, bolded text) directed counsel for the debtor to serve all creditors with a copy of the order. Why was it not served?
Failure to comply with requirements for professionals. The debtor's status report (dkt. 45, p.4) states that neither the debtor's attorney nor any other professional intend to apply for employment because they do not intend to seek compensation during the case. That is not the test. They are required to apply for employment under 11 U.S.C. 327. In addition, the United States Trustee ("UST") has objected in its motion to dismiss (dkt. 39) that the person who claims to be acting as the debtor's bankruptcy attorney, Robert A. Brown, Esq., is also the debtor's CEO and General Counsel. The parties should be prepared to address the conflicts issues.
Failure to comply with Chapter 11 requirements. See the UST's motion to dismiss (dkt. 39).
Failure to comply with procedures for plan (dkt. 38) and disclosure statement (dkt. 37). As stated in this Court's status conferences order (dkt. 9), Judge Bason's posted procedures (available at www.cacb.uscourts.gov) establish procedures for any draft plan and disclosure statement. Counsel for the debtor has violated those procedures by mailing a copy of the drafts to creditors before this Court has approved such mailing.
In addition, those documents omit any meaningful liquidation analysis or disclosure of what could be paid to general unsecured creditors, instead opting for a flat 12% promised distribution (dkt. 38, at PDF pp.13-14). In addition, from the summary of assets and liabilities (dkt. 19) it appears that the debtor might have enough equity in property to pay far more than12%, depending on the total amount of unsecured claims.
Opaque "disclosures". The debtor's references to a sale of the "Marsh" property is not adequately explained. In addition, although the debtor's bankruptcy Schedule H (dkt. 1) asserts that there are no co-debtors, this Court questions whether that is so because business organizations typically have individual guarantors on any major debts.
Deadlines/dates. This case was filed on 7/30/18.
Bar date: 11/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement: TBD.
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Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Acquiplied Assets, B.T. Represented By Robert A Brown Stephen L Burton
1:00 PM
Docket 5
Revised Tentative Ruling for 10/9/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 57) will address at the Status Conference Debtor's proposed Plan (dkt. 55) and disclosure statement (dkt. 54).
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement*: This Court anticipates authorizing service of a voting package and setting related deadlines and dates, including a combined hearing on final approval of the disclosure statement and confirmation of the plan.
Continued status conference: 11/27/18 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 8/7/18:
Continue to 10/9/18 at 1:00 p.m., per the debtor's request (Status Report, dkt. 51). Appearances are not required on 8/7/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Continue to 8/7/18 at 1:00 p.m. Appearances are not required on 6/26/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/21/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/26/18 at 1:00 p.m., to be
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
R44 LENDING GROUP, LLC a Represented By
Jeffrey S Shinbrot
1:00 PM
fr. 03/03/15, 03/31/15, 04/28/15, 05/26/15, 06/09/15, 07/07/15, 07/28/15, 09/01/15, 09/22/15, 11/17/15, 12/15/15,
01/19/16, 02/23/16, 03/22/16, 05/31/16, 07/19/16, 09/27/16,
11/29/16, 01/10/17, 04/25/17, 06/20/17, 10/17/17, 01/30/18,
04/10/18, 05/08/18, 06/07/18, 07/10/18, 08/07/18, 9/4/18
Docket 9
Tentative Ruling for 10/9/18:
Continue to 11/6/18 at 1:00 p.m., with a brief status report due by 10/23/18. Appearances are not required on 10/9/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 332) and Status Report (dkt. 333). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Continue to 10/9/18 at 1:00 p.m., with a brief status report due by 9/25/18. Appearances are not required on 9/4/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 329) and Status Report (dkt. 330). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue to 9/4/18 at 1:00 p.m., with a brief status report due by 8/21/18. Appearances are not required on 8/7/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 325) and Status Report (dkt. 326). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Continue to 8/7/18 at 1:00 p.m. Appearances are not required on 7/10/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 322) and Status Report (dkt. 324). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 6/7/18:
Continue to 7/10/18 at 1:00 p.m. Appearances are not required on 6/7/18.
This Court has reviewed the debtor's latest filed documents regarding its cash flow and sale of property (dkt. 316, 317, 319, 320). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Continue to 6/7/18 at 1:00 p.m. Appearances are not required on 5/8/18.
This Court has reviewed the debtor's status report (dkt. 313), notice of pending sale for the Broadway property (dkt. 314), and latest monthly operating report (dkt. 312). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 1:00 p.m. Appearances are not required on 4/10/18.
This court has reviewed the debtor's status report (dkt. 311) and monthly operating reports (dkt. 309, 310), and this court is not aware of other issues
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that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's status report (dkt. 304) and the notice (dkt. 307) filed by Bayview Loan Servicing, LLC ("Bayview"). The parties should be prepared to address the issues raised by those papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's post-confirmation status report (dkt. 298) and has no issues to raise sua sponte at this time. The tentative ruling is to continue this status conference to 1/30/18 at 1:00 p.m.
If you do not appear, and the matter is not adequately resolved by consent,
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then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 10/17/17 at 1:00 p.m. in view of the debtors' status report (dkt. 292). Appearances are not required on 6/20/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/25/17:
Continue to 6/20/17 at 2:00 p.m., to provide the debtors with time to seek entry of a final decree in this case, or such other remedies as may be necessary or appropriate, in view of the confirmed Joint Chapter 11 Plan (dkt. 270) and the unopposed motions to approve the compromise with Butler Capital (dkt. 277-80). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
[PRE-CONFIRMATION TENTATIVE RULINGS OMITTED]
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
1:00 PM
fr. 6/13/17, 6/20/17, 9/19/17, 11/7/17, 1/23/18, 02/13/18, 4/10/18, 07/17/18, 9/4/18
Docket 1
Tentative Ruling for 10/9/18:
Continue to 11/6/18 at 1:00 p.m., based on the latest status report (dkt. 166), with a brief status report due by 10/23/18. Appearances are not required on 10/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Continue as set forth below. Appearances are not required on 9/4/18.
This Court has reviewed the debtors' latest filed documents, including the Status Report (dkt. 163) filed 7/10/18 in which debtors anticipated (i) completing payments by 8/9/18 and (ii) filing a motion for discharge thereafter. This Court is not aware of issues that would warrant a status conference at this time, but the Court is setting a deadline for the filing of a status report, as set forth below, for the debtors to apprise the Court of any other developments regarding this case and its final disposition.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
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Post-confirmation status conference: 10/9/18 at 1:00 p.m., brief
status report due by 9/25/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Continue as set forth below. Appearances are not required on 7/17/18.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 9/4/18 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor but telephonic appearances
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are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Service of voting package. The proof of service (dkt. 140) states that the voting package has been served on "Secured and Twenty Largest Unsecured Creditors." (Emphasis added.) The voting package should have been served on all creditors. Is the proof of service in error? If so, the tentative ruling is to set a deadline of 4/11/18 for the debtor to file a corrected proof of service. If not, counsel for the debtor should be prepared to address
(i) the dates and procedures for re-balloting and a continued hearing and (ii) not charging attorney fees for correcting this issue.
Disclosure statement (dkt. 134) and plan (dkt. 135), and motion to modify plan (dkt. 142). The debtor has not filed any ballot summary. If sufficient ballots have been received to vote in favor of confirmation by the requisite majorities then the tentative ruling is to approve the disclosure statement on a final basis, grant the motion to modify the plan, and confirm the plan as modified. All of the foregoing is contingent, however, on the debtor filing a sufficient ballot summary no later than 4/11/18.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 7/17/18 at 1:00 p.m. Status report due 7/9/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 2/13/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 127) and Disclosure Statement (dkt. 126).
Impairment - Class 2B. The Plan lists Class 2B as unimpaired - is it?
Impairment - Class 4A. The Plan does not specify whether Class 4A is impaired.
DIP Financing. Class 2C appears to consist of the debtor's contemplated postpetition DIP borrowing (dkt. 111, 121). First, classes under the Plan are reserved for prepetition debts, whereas repayment of postpetition DIP financing should be reflected in cash flow projections (Ex.C) (this is not just an academic issue: for example, Classes vote; DIP lenders do not).
Second, Endnote 2C (in Ex.H) appears to relate to this "Class" of DIP fiancing, and it appears to state that the terms of that financing are unknown ("Debtors will have full and accurate loan information as the loan is processed"). The debtors' counsel must address at the hearing whether there is any reason why the Plan cannot be updated to reflect the actual financing terms, which would eliminate the need for any such Endnote.
Stipulation with US Bank. The Plan should attach a copy of the Stipulation (dkt. 124) with creditor U.S. Bank N.A. (as trustee); Wells Fargo Home Mortgage as servicer (collectively, "US Bank"), as it may be modified (see below re possible amendments to that Stipulation). See dkt. 129 (limited objection of US Bank).
US Bank's concerns (dkt. 129). This Court's posted procedures (available at www.cacb.uscourts.gov, under Judge Bason) provide in part:
§ 362: Automatic Stay. (1) Stipulations. Generally, the judge will not approve a stipulation for relief from stay/adequate protection order (“APO”) that purports to be automatically effective ... because there might be equity in the property [Emphasis altered.]
Consistent with this limitation, US Bank agreed to an Adequate Protection Order ("APO") which does not provide for any automatic
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termination of the automatic stay. Instead it provides (in the APO attachment, at paragraph 6.b.) that in the event of a default:
[US Bank] may file and serve a declaration under penalty of perjury specifying the default, together with a proposed order terminating the stay, which the court may grant without further notice or hearing.
More recently, however, US Bank entered into its Stipulation with the debtors (dkt. 124) which not only includes the above-quoted language about what will happen in the event of a pre-confirmation default but goes on to add another clause. It states:
5. [US Bank] may file and serve a declaration under penalty of
perjury specifying the default, together with a proposed order Terminating the Automatic Stay, which the Court may grant without further notice or hearing, and Creditor (and/or its servicer) may commence any and all action necessary to obtain complete possession of the Subject Property without further notice,
order, or proceeding of this Court. [Emphasis added.] US Bank argues (dkt. 129, p.6:3-12) that this language in the
Stipulation was "taken from" the APO (para. 6.b.), but this is not quite accurate: the emphasized language has been added. Does that additional language mean anything? US Bank now appears to argue that it means nothing - that "the intent was simply to maintain the status quo like it is under the APO" (dkt. 129, p.6:6).
This Court agrees: the emphasized language appears to be surplusage; but unfortunately it is arguably subject to a different interpretation. Because it is unusual for parties to add meaningless language to their stipulations, the emphasized language arguably could be read to mean that US Bank could "commence" all actions necessary to foreclose without any order of this court.
Because of this (and other) ambiguities in the Stipulation this Court added the following caveat in its order approving the Stipulation:
... notwithstanding anything in the Stipulation to the contrary, the automatic stay will not automatically terminate upon a default or conversion of this case except as to Debtors (i.e., no automatic termination as to the bankruptcy estate, so as to preserve any equity that might then exist in the property for the benefit of other creditors) [Dkt. 128, p.2:5-8, emphasis in original]
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US Bank now requests "that the Order [approving the Stipulation] be
amended to clarify that any pre-confirmation default shall be in accordance with the [Stipulation] at paragraph 5, or in the alternative, pursuant to the existing APO, paragraph 6(b)." Dkt. 129, p.6:10-12. This Court believes the simpler solution - both in this case and in all future cases - would be to delete the surplus language in paragraph 5 of the Stipulation. US Bank's counsel should be prepared to address whether they will agree to delete the surplus language in paragraph 5 of the Stipulation in this case and in all future stipulations in any case before this Court.
Similarly, paragraph 13 of the Stipulation ends by stating that in the event the debtors' case is dismissed or converted then not only shall US Bank retain its lien securing the full dollar amount it is owed (less any payments received) but also "the Automatic Stay shall be terminated without further notice, order or proceeding of the Court." (Emphasis added.) US Bank has now agreed to delete this emphasized language. See dkt. 129, pp.5:26- 6:2. Again, US Bank's counsel should be prepared to address whether they will delete this language in all future stipulations in cases before this Court.
Another concern raised by US Bank is that this Court's language in the order approving the Stipulation (quoted above) appears to limit paragraph 6 of the Stipulation, which provides that upon confirmation of debtors' chapter 11 plan "the Automatic Stay shall be deemed terminated as to the Debtors and the estate" and US Bank can pursue its contractual remedies under the loan documents "without further notice, order, or proceeding of this Court." Dkt.
124, p.4:12-18. This Court did not intend to override that provision - the tentative ruling is that upon confirmation of a chapter 11 plan it is entirely appropriate to provide that the automatic stay no longer applies because then the parties have a revised contractual relationship - so US Bank is correct that the order approving the Stipulation is overbroad to the extent that the language added by this Court affects paragraph 6 of the Stipulation.
Based on all of the foregoing, the tentative ruling is that if US Bank will agree to amend its Stipulation in paragraphs 5 and 13 as set forth above (to delete the language about automatic termination of the automatic stay), and leave paragraph 6 unchanged, this Court will approve that Stipulation without the modification that is included in the current order approving the Stipulation. The debtor will need to attach the amended Stipulation to the Plan.
Note: The parties might wish to take the opportunity to review the
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Stipulation for any other provisions that would benefit from revision. For example, this Court notes that paragraph 13 of the Stipulation starts by providing that "[t]he terms of this Stipulation are contingent upon Debtors' confirming a Chapter 11 Plan." Dkt. 124, p.6:8-8. Read literally this would mean that the Stipulation's terms regarding pre-confirmation defaults (para. 5) are contingent upon confirmation, which makes no sense. Other provisions similarly do not appear to be intended to be contingent on confirmation (but it is up to the parties to decide if they wish to clarify such issues).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 127)/Disclosure Statement (dkt. 126)*: 2/27/18 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference, with a revised stipulation with US Bank attached, and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 4/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue this status conference to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
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Reasons: (a) the debtors' apparent need to amend the proposed plan in view of the recent withdrawal of their objection to the prior claim of the Internal Revenue Service ("IRS") in view of the IRS' amended claim (see dkt. 119);
the debtor's failure to file a brief status report (due 1/16/18 per the adopted tentative ruling for the 11/7/17 hearing, reproduced below); and
the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the shutdown of much of the federal government.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Continue to 1/23/18 at 1:00 p.m. to address the following issues. Appearances are not required on 11/7/17.
Reasons: This court is continuing the hearing in light of the response filed by the IRS (dkt. 105) and because (1) if the dollar amount owed to the IRS changes then changes also will be needed to the amended plan (dkt. 107) and amended disclosure statement (dkt. 106) and (2) although the debtor correctly deleted Endnotes 2, 2A, 2B and 2C from Exhibit H, the debtor forgot to delete the references to those (non-existent) endnotes on Exhibits A and E. No later than 1/16/18 the debtor is directed to file an amended plan to cure these issues, if possible, or alternatively a very brief status report (e.g., one or two sentence).
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/19/17:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Monthly Operating Report (dkt. 94). What is the $700 transfer for 8/31/17 (at p.4) entitled "money owed"? The debtor reports one missed payment to Wells Fargo in the amount of $2,167.68 (at p.10), as against onl y
$2,398.12 in her rental property account (p.11) and $1,404.57 in her personal account. Is the debtor losing money? Can the debtor propose a feasible plan of reorganization?
Plan (dkt.92) /Disclosure Statement (dkt. 91). (i) These documents are not signed by the debtors ("/s/" typed signatures are only permitted for limited categories of persons, such as registered CM/ECF users). (ii) The Disclosure Statement contemplates claim objections (dkt. 91, Ex.H, Endnotes 1-2). Why have these issues not been resolved by now? (iii) The Disclosure Statement's Endnotes 2A, 2B, 2C and 5 repeat (and/or misstate) the terms of the Plan. Those endnotes should be deleted. (iv) The Disclosure Statement's Ex.C (income/expenses) is divided into two periods, but the income and expenses appear to be identical in each period. Why should this not be a single period?
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt.92) /Disclosure Statement (dkt. 91)*: 10/24/17 deadline to file amended documents.
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
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Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Status Report. The debtor is using an outdated form. The current version is Local Form F 2081-1.1.CH11.STATUS.RPT.
Cash collateral motion (dkt. 30). Grant on a final basis, on the same terms as in the interim order (dkt. 58).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/5/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee).
Continued status conference: 9/19/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
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7/11/17, 8/15/17, 9/12/17, 10/3/17 , 12/5/17,
2/13/18, 5/1/18, 08/07/18
Docket 5
Debtor(s):
Eleganzarella, Inc Represented By
Anthony Obehi Egbase Crystle Jane Lindsey Kevin Tang
Adaure C Egu Edith Walters Clarissa D Cu
Amelia Puertas-Samara
W. Sloan Youkstetter
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(2) Allocate Proceeds Resulting from Approval, if Any, of the Motion for Order Approving Settlement Between Debtor and CKT Logistics, Inc., Fargo International, LLC, Fargo Transport, LLC, Fargo Trucking Logistic Co., LLC, Express FTC, Inc., Hancore Brokerage Services, Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019 Related to the Secured Creditors Liens
fr. 07/10/18, 08/07/18, 08/23/18, 9/21/18
Docket 122
Tentative Ruling for 10/918:
Please see tentative ruling for status conference (calendar no. 5 at 2:00 p.m. on 10/9/18).
Tentative Ruling for 9/21/18:
Please see tentative ruling for status conference (calendar no. 6 at 9:00 am. on 9/2118).
Tentative ruling for 7/10/18:
This court anticipates posting a tentative ruling no sooner than the afternoon of Monday 7/9/18. [NOTE: no tentative ruling was posted]
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
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Vanessa M Haberbush David R Haberbush Lane K Bogard
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fr. 5/1/18, 5/22/18, 08/07/18, 9/21/18
Docket 122
Tentative Ruling for 10/918:
Please see tentative ruling for status conference (calendar no. 5 at 2:00 p.m. on 10/9/18).
Tentative Ruling for 9/21/18:
Please see tentative ruling for status conference (calendar no. 6 at 9:00 am. on 9/2118).
Tentative Ruling for 8/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 8/7/18).
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush
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Movant(s):
Lane K Bogard
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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fr. 5/1/18, 5/22/18, 08/07/18, 9/21/18
Docket 149
Tentative Ruling for 10/918:
Please see tentative ruling for status conference (calendar no. 5 at 2:00 p.m. on 10/9/18).
Tentative Ruling for 9/21/18:
Please see tentative ruling for status conference (calendar no. 6 at 9:00 am. on 9/2118).
Tentative Ruling for 8/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 8/7/18).
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Fargo Trucking Logistic Co LLC, Express FTC, Inc., Hancore Brokerage Services Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019
fr. 02/13/18, 03/06/18, 5/1/18, 5/22/18, 08/07/18, 9/21/18
Docket 36
Tentative Ruling for 10/918:
Please see tentative ruling for status conference (calendar no. 5 at 2:00 p.m. on 10/9/18).
Tentative Ruling for 9/21/18:
Please see tentative ruling for status conference (calendar no. 6 at 9:00 am. on 9/2118).
Tentative Ruling for 8/7/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 8/7/18).
Tentative Ruling for 5/1/18:
Please see the tentative ruling for the status conference (calendar no. 6, at 2:00 p.m. on 5/1/18).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference (calendar no. 4, at 2:00 p.m. on 3/6/18).
Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference (calendar no. 8, at 2:00 p.m. on 2/13/18).
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Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Docket 1
Tentative Ruling for 10/9/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the Amended and Revised Settlement Agreement and Mutual and General Release Agreement (see dkt. 298).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/21/18:
Appearances required. This Court has reviewed the transcript that orally memorializes the principal parties' settlement. See Tr. 9/7/18 (dkt. 295), pp. 3:16-15:18 & 30:1-4 (the "Main Settlement"). The parties should be prepared to address the following issues.
Settlement documentation. What documents are being prepared to implement the Main Settlement (e.g., the form of notice to the Truck Drivers, including their election whether to return the trucks and their agreement to mutual releases)? What is the status of that preparation? Will the notice to the Truck Drivers need to be in any languages other than English and Spanish? What steps can be taken before the documentation is finalized, and conversely what steps should wait until the documents are finalized?
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Secured/unsecured Truck Drivers. How do the parties propose to address what portion of the distributions from the bankruptcy estate should be allocated to the secured claims of certain Truck Drivers, and what remainder should be allocated to unsecured claims? Is that issue deferred until a proposed chapter 11 plan? If so, how will the possible effects of various secured claim amounts be adequately explained to the Truck Drivers who will be asked to consent to the Main Settlement? Conversely, if the parties have a proposed settlement as to the allowed dollar amount of these secured claims, what are the proposed terms of that additional settlement (the "Secured Driver Claims Settlement")?
Procedures. What procedures should apply to the Main Settlement and any Secured Driver Claims Settlement (or litigation)? For example, is another Rule 9019 motion advisable (or necessary)? Should this Court find and conclude, under Rule 2002(a)(3), Fed. R. Bankr. P., that some sort of supplemental notice and opportunity to object (and overbid?) is sufficient, given that notice has already been provided of the basic issues and standards governing settlement? See dkt. 36 (settlement motion) and dkt. 122 (priorities/secured claims motion).
Whatever further procedures are required, should different sets of documents be provided to (a) the Truck Drivers (holding both secured and unsecured claims) and (b) other creditors (holding both secured and unsecured claims)? Should all creditors, including the Truck Drivers, receive a complete set of settlement documentation, or is that an undue expense? Is it sufficient for such documents to be available upon request? Should any cover letter/notice be translated, but not the underlying documentation (to save expense)?
Calendaring. Is it appropriate (a) to continue the status conference and settlement motion (dkt. 19) for a relatively brief time, so that the parties can prepare the settlement documentation for review by this Court prior to mailing, and (b) take off calendar (without prejudice) all other matters that have been set for hearing today, including the overbid procedures motion (dkt. 149)?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue as stated below. No appearances required on 8/7/18.
Current issues. This Court has reviewed the parties' joint status report (dkt. 262) and other relevant pleadings in this case.
Bid Procedures Motion (dkt. 149). The tentative ruling is to defer ruling on this until after resolution of the discovery dispute and continue the hearing to a date and time to be set at the continued status conference set forth below.
Motion to Approve Compromise (dkt. 36). The tentative ruling is to defer ruling on this until after resolution of the discovery dispute and continue the hearing to a date and time to be set at the continued status conference set forth below.
Motion to Determine Extent & Priority of Truck Drivers' Liens (dkt. 122). The tentative ruling is to defer ruling on this until after resolution of the motion to disqualify and continue the hearing to a date and time to be set at the continued status conference set forth below.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 9/4/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Revised Tentative Ruling for 5/29/18:
Appearances required.
Current issues.
Debtor’s Motion to Extend Time to Assume or Reject Lease (dkt. 139). Debtor seeks an extension of time to assume or reject its lease of commercial real property located at 2727 E. Del Amo Blvd., Rancho Dominguez, CA 90221 (the "Property") with Joe Murez Exempt Trust ("JMET" or "Landlord") through June 4, 2018. But in connection with Landlord's currently motion (dkt. 184, see discussion below), the debtor concedes that there are incurable defaults that prevent it from assuming the lease and states that it intends to vacate and surrender the Property by May 31, 2018 (dkt. 197, PDF p. 7, lines 17-19 & Wallace Declaration, paragraph 14). Additionally, on May 7, 2018, debtor served its subtenants with 30-day notices to terminate rental agreement with an expiration date of June 6, 2018 (id., Ex. A).
In Landlord's motion (dkt. 184, see discussion below), it seeks possession of the Property effective as of June 5, 2018 and appears to have consented to an extension through that time (see dkt. 184, PDF p. 4, lines 26- 27).
The tentative ruling is to grant the debtor's motion and extend the deadline to assume or reject the lease to May 31, 2018. The effects of that date on the subtenants and the Landlord are addressed below.
Landlord's Motion for Administrative Claim and Possession of Property (dkt. 184).
Base rent, late fees, interest, CAM, taxes, attorneys' fees and costs. Pursuant to 11 U.S.C. 365(d)(3), Landlord is entitled to an allowed administrative expense for the full amount of rent accrued during the period following the order for relief through the lease rejection, regardless of the actual value conferred by the lease upon the estate. See Pacific-Atlantic Trading Company, 27 F.3d 401 (9th Cir. 1994); In re Cukierman, 265 F.3d 846 (9th Cir. 2001). Section 365(d)(3) requires immediate payment of lease obligations so that the landlord is not left providing uncompensated services. In re Cukierman, 265 F.3d at 851-52.
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In this case, Paragraph 4.1 of the Lease provides: "All monetary
obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be Rent." Pursuant to paragraphs 1.5, 4.3, 10.2, 13.4, 13.5, and 31, Landlord is entitled to an allowed administrative expense for payment of base rent, late fees, interest, CAM, taxes, and attorneys' fees and costs. On the record before this Court, Landlord holds an estimated administrative expense in the amount of $79,965.01 ($48,626 (May rent) + $4,862.20 (late fee) + $11,661.31 (real property taxes) + $14,815.5 (attorneys fees) = $79,965.01). Landlord may supplement the record to establish a valid basis for any additional amounts it may be entitled to under the Lease (e.g., prorated June rent if the debtor has not turned over the premises as of 5/31/18).
No superpriority. Section 365(d)(3) does not authorize a superpriority over other administrative expenses. In re LPM Corp., 300 F.3d 1134 (9th Cir. 2002). It is possible that the estate will be administratively insolvent (although the estate's assets and its administrative claims are largely moving targets until the conclusion of any bankruptcy case) so if Landlord had slept on its rights and were seeking prior months' rent it would not be entitled to payment at this time; but that is not the situation.
Landlords are entitled to current payments. Other administrative claimants are not. There is no evidence that this Landlord has slept on its rights.
Reconciling the lack of priority with the entitlement to current payments, the tentative ruling is that Landlord is entitled to immediate payment of a pro rata share of funds that are available to pay estimated accrued administrative expenses to date. This is essentially the alternative relief requested by Landlord (see dkt. 200, p.4:4-8).
Because the interim fee applications (discussed below) seek approximately $305,000 in fees and expenses, and because Landlord's claim is approximately $79,965.01, it appears that the rough total of accrued administrative expenses is approximately $385,000, of which Landlord holds roughly $80,000, or approximately 20% ($80,000/$385,000 = 20.8%).
Therefore, the tentative ruling is that Landlord is entitled to immediate payment of approximately 20% of the $47,000 in unrestricted funds currently in debtor's possession (dkt. 197, PDF p. 13, paragraph 13), or approximately
$9,400.
Landlord has not established that the funds are held in trust
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for it. This Court is not persuaded that the $47,000 in funds debtor has on hand is being held in trust for Landlord. Landlord has not carried its burden of establishing that, under California law, an express trust exists that excepts these funds from estate property. See Golden Mortg. Fund # 14 v. Kennedy, 171 B.R. 79, 84 (9th Cir. BAP 1994) ("A creditor has the burden to prove that the funds in the debtor's possession should be held in trust for that creditor's benefit").
Surrender and Writ of Possession. Landlord has discretion whether to extend the time for the debtor to assume or reject the Lease beyond the statutory maximum, or permit occupancy after rejection, absent nonbankruptcy law that would permit occupants to continue in possession. As set forth above, the tentative ruling is that the lease will be deemed rejected on 5/31/18.
Because neither the subtenants nor any other party in interest has articulated a sufficient basis for the subtenants to continue to occupy the Property following rejection of the Lease, the tentative ruling is to grant Landlord's request for a writ of possession directing any subtenants to surrender and vacate the property effective 6/6/18. Landlord is instructed to review LBR 7064-1 and include the necessary language set forth in 7064-1(e) into the proposed order.
Relief from stay. The tentative ruling is to grant Landlord relief from the automatic stay under 362(d)(1).
Waiver of 14-day stay. The tentative ruling is to waive the
14-day stay.
Interim Fee Apps of Levene Neale Bender Yoo & Brill (dkt. 177); CohenReznick LLP (dkt. 178); and Haberbush & Associates LLP (dkt. 179), and related documents (dkt. 200, 214). The tentative ruling is to approve the applications on an interim basis, subject to final review and approval at the conclusion of the case, but deny the requests for immediate payment of fees and expenses given the debtor’s limited funds on hand, except that Haberbush & Associates may draw down on its pre-petition retainer, subject to the possibility of disgorgement in future.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
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Continued status conference: 8/7/18 at 2:00 p.m., to be heard concurrently with the other matters set for hearing in this case. Brief status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
This court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 5/22/18:
Appearances required.
Current issues.
April MOR (dkt.192). On PDF p. 3, the debtor identifies a payment made to "Transport" on 4/26/18 in the amount of $55,515.00 for "dispatch and brokerage svc." What is this payment for? Is it an "ordinary course" transaction?
Motion to Disqualify Truck Driver Counsel (dkt. 125). This Court issued an order (dkt. 169, amended dkt. 175) continuing this motion and set
(i) a 5/15/18 deadline for the Slattery Law Firm and Hirsch Law Firm to file supplemental papers addressing who properly represents the Truck Drivers; and (ii) a 5/21/18 at noon deadline to file any responses.
This Court has reviewed the relevant papers. See dkt. 125, 126 & 127 (motion papers), dkt. 143 (Hirsch opposition), dkt. 145 (Slattery opposition), dkt. 156, 157 (debtor's reply), dkt. 161 (Slattery decl.), dkt. 167 (Slattery Rule 2019 statements), dkt. 189 (debtor's authorities re attorney-client privilege as applied to retainer agreements), dkt. 199 (Hirsch supp. opposition), dkt. 201 (Slattery decl.), dkt. 202 (Hirsch supp. reply), dkt. 203 (Hirsch evid. obj. to
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Slattery decl.), dkt. 204 (Rivera|Shakleford opp. re S.H. Chung, R.M. Rubio,
H.D. Alvarez & G. Perez Silva).
There is no tentative ruling, but the parties should be prepared to address the arguments set forth in the filed papers.
(c) Objection to Claim Nos. 11, 37, 38, 40, 44, 45, 50 (dkt. 108, 109,
111, 113, 115, 117, 119). The proofs of claim were filed by the Hirsch Law Firm and the claim objections/notices were served on the Hirsch Law Firm and Slattery Law Firm. However, based on the debtor's pending motion to disqualify both firms, the tentative ruling is to continue the hearings on these claim objections to 6/19/18 at 2:00 p.m., pending resolution of the motion to disqualify. At the continued hearings, the parties should be prepared to address whether it would be appropriate for this court to set continued oppositions deadlines.
Note: Counsel did not comply with Judge Bason's posted procedures (at www.cacb.uscourts.gov) requiring a cost/benefit analysis for any claim objection (although this court's own cost/benefit analysis appears to favor seeking to reclassify these claim). In future, counsel should comply with those posted procedures.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/29/18 at 2:00 p.m., to be heard concurrently with the other matters set for hearing in this case. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/1/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Motion to Approve Compromise (dkt. 36). The parties should be prepared to address the status of any settlement negotiations with respect to the pending motion to approve compromise.
Status Report. At the last status conference on 2/13/18, this court directed the debtor to file a brief status report by 2/27/18. As of the preparation of this tentative ruling, the debtor has not complied. The debtor should be prepared to address why it failed to comply with this court's order.
Employment application: Creditors' Committee Counsel (dkt. 47, 65). The objection by certain truck drivers (dkt. 63) has been withdrawn (dkt. 89). The debtor's limited objection (dkt. 55) and the reply papers (dkt. 85, 86) raise issues that are best addressed in connection with any application for compensation, at which time this Court can evaluate whether the hourly billing rates are commensurate with the nature of the work performed, the time spent on each task, and the other factors under 11 U.S.C. 330. Therefore the tentative ruling is to overrule the objection and authorize the employment.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
2:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues.
The parties should be prepared to address (a) whether the Court should order mandatory mediation of the proposed settlement, proposed assignment of the lease, and related issues; (b) whether concurrently this Court should set deadlines such as a discovery cutoff or, conversely, whether this Court should temporarily issue a stay of some litigation; and (c) whether the parties would prefer that this Court provide some tentative rulings or preliminary thoughts on various issues, or if instead it would foster possible settlement or serve other beneficial goals for this Court not to do those things at this stage of the case.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor and by the debtor(s)
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themselves.
Current issues.
n/a
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 2/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: This court will discuss setting a deadline for the filing of a draft plan/disclosure statement at the status conference.
Continued status conference: 2/13/18 at 1:00 p.m., brief status report due 1/30/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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U.S. BANK, NATIONAL ASSOC vs
DEBTOR
Docket 36
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current, (b) the alleged discrepancy in the amounts Debtor paid to SPS, and
(c) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wayne Leslie Harpe Represented By Nima S Vokshori
Movant(s):
U.S. Bank, National Association, as Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CARRINGTON MORTGAGE SERVICES, LLC
vs DEBTOR
Docket 46
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 48).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jonathan Tolentino Puerto Represented By Onyinye N Anyama
Movant(s):
Carrington Mortgage Services, LLC Represented By
Erin M McCartney Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 30
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Gricelda Valenzuela Represented By Daniel King
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel Megan Porter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 83
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) the payment discrepancies as alleged in Debtor's response (dkt. 85), and (b) whether payments were misapplied to the wrong account.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ronald Martinez Represented By Moises A Aviles
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel John Tamburo Megan Porter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
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DITECH FINANCIAL LLC
vs DEBTOR
Docket 62
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief.
Grant the request for retroactive annulment of the stay. See In re Fjeldsted,
293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any
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bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at
www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is insufficient evidence and notice.
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robert Garviria Pro Se
Joint Debtor(s):
Adriana Juarez Pro Se
Movant(s):
Ditech Financial LLC Represented By
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Trustee(s):
Cassandra J Richey
Wesley H Avery (TR) Pro Se
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WELLS FARGO BANK, NA
vs DEBTOR
Docket 37
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
David Watson Gayman Represented By Matthew D. Resnik
Movant(s):
Wells Fargo Bank N.A. Represented By
Dane W Exnowski Megan Porter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JAIN 2012 GIFT TRUST DBA MIRADA GROUP
vs DEBTOR
Docket 73
Appearances required. The tentative ruling is to grant relief to the movant ("Jain Trust") by modifying, not terminating, the automatic stay, as follows.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Background
Debtor's chapter 13 bankruptcy petition was filed on 5/29/18. Little progress was made, and in any event the debts exceeded the chapter 13 limit. 11 U.S.C. 109(e).
A hearing was held on 8/2/18, to consider whether to confirm the debtor's proposed chapter 13 plan, or take other action with respect to this case. This Court was persuaded to dismiss this case with a 180 day bar against being a debtor in bankruptcy, for willful failure to appear in proper prosecution of this case. 11 U.S.C. 109(g)(1). That oral ruling was later memorialized in a written order (dkt.35).
Debtor moved for reconsideration (dkt. 30, filed 8/4/18) and this Court heard that motion on shortened time. Debtor essentially acknowledged that she had failed to prosecute this case but asserted that this was not willful; that she had been uncertain whether to refinance, sell, or develop the property with a joint venturer; and that, if the dismissal were vacated and the case converted to chapter 11, she would diligently prosecute it. Debtor attached to the motion for reconsideration a broker price opinion ("BPO") valuing the subject property between $8.5 and $9 million (dkt.30, Ex.3), and a letter of intent for a refinance loan of $8,600,000 (the "Refi LOI"). Dkt. 30,
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Ex.1. This Court granted the reconsideration motion (dkt.34).
Legal standards
Under 11 U.S.C. 362(d)(1) this Court "shall" grant relief from the automatic stay, including modification or termination of the stay, for "cause" including a lack of adequate protection of Jain Trust's interest in the property. An equity cushion can serve as adequate protection, but generally a 10% or 20% equity cushion after costs of sale is considered the minimum amount necessary (in the absence of monthly payments or other forms of protection). See, e.g., In re Mellor, 734 F.2d 1396, 1401 (9th Cir. 1984) (noting approvingly that a 20% equity cushion has been held to be adequate protection); In re McGowan, 6 B.R. 241, 243 (Bankr. E.D. Pa. 1980) (holding a 10% equity cushion is sufficient to constitute adequate protection); In re Jug End in the Berkshires, Inc., 46 B.R. 892, 900 (Bankr. D. Mass. 1985) (holding an 8.3% equity cushion is insufficient to constitute adequate protection).
Under 11 U.S.C. 362(d)(2) this Court shall grant relief from the automatic stay if Debtor has no equity in the property and the property is "not necessary to an effective reorganization." The quoted phrase has been interepreted to mean a plan of reorganization that would have a reasonable possibility of being confirmed in a reasonable time. United Sav. Ass'n of Texas v. Timbers of Inwood Fores Assocs., Ltd., 484 U.S. 365, 633 (1988) (holding that for property to be necessary for an effective reorganization, there must be a "reasonable possiblity of a successful reorganization within a reasonable time") (citation and internal quotation marks omitted).
Under 11 U.S.C. 362(d)(4) this Court shall grant relief from the automatic stay if this Court finds that the filing of Debtor's bankruptcy petition was part of a scheme to delay, hinder, or defraud creditors that involved a transfer of an interest in the property without Jain Trust's consent.
Under 11 U.S.C. 362(g), Jain Trust has the burden of proof on the issue of Debtor's equity in the property, and Debtor has the burden of proof on all other issues.
Analysis
Section 362(d)(1) and (2)
Jain Trust argues that, if this Court relies on Debtor's own bankruptcy schedules and BPO (and a judgment lien of over $57,000), there will be nothing left for unsecured creditors after 8% costs of sale (which is the
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standard percentage). Jain Trust is correct.
Debtor has not disputed Jain Trust's calculation that it is owed
$8,363,697.51 as of 9/17/18 (dkt.73, p.7). Assuming for purposes of discussion that the property should be valued at the high end of the BPO, or
$9 million, that would leave only $8,280,000 after 8% costs of sale (because
$9 million x 92% = $828,000).
Debtor argues, however, that her prior estimates were too low (and, less credibly, that in her bankruptcy schedules she confused the dollar amount of the debt with the dollar value of the subject property). Her opposition papers include an appraisal for $13,265,000 as of 3/7/18 (dkt. 79, Ex.1) and a letter of intent from an entity called "Tiburon Asset Management, LLC" to purchase the property for $13,000,000 (the "Tiburon LOI").
As Jain Trust points out in its reply, Debtor's appraisal appears to be premised on future development of the property. See dkt. 78, Ex.1, Part 1,
p.13 ("The purpose of this appraisal is to develop an opinion of the market value of the subject property, as improved.") (emphasis added). In addition, this Court notes that the allegedly comparable properties ("Comps") used in the appraisal appear from the photographs to be markedly improved as compared with the subject property. See dkt. 78, Ex.1, Part 1, pp.42-43. In other words, Debtor's appraisal is not very convincing evidence of the current value of the property.
As for the Tiburon LOI, this Court notes that the $13 million purchase price is broken down into "$8,320,000.00 cash at closing" plus a "second mortgage lien" for $4,680,000.00. The proposed "cash at closing" is less than Jain Trust's claim of $8,363,697.51 as of 9/17/18 (dkt.73, p.7). That does not necessarily mean that the total value of the property is less than Jain Trust's claim; but this Court must discount the alleged $13,000,000 purchase price in the Tiburon LOI for several reasons: (i) it is a LOI, not a binding contract; (ii) the proposed $4,680,000.00 junior lien would entail all the usual risks of a junior lien on a real estate development, and (iii) there is no information about the purchaser's willingness and financial ability to proceed with the proposed transaction (e.g., a declaration including evidence of the proposed purchaser's finances and other indicia that this is a bona fide transaction in prospect).
On this last point (whether the Tiburon LOI reflects a genuine intent), this Court notes a troubling fact about Debtor's prior evidence. As Jain Trust points out (dkt. 80, pp.2:23-3:7), Debtor's prior evidence of value of between
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$8.5 million and $9 million is highly suspect, although at first glance it appears legitimate. The specifics are as follows.
Debtor's Refi LOI (dkt. 30, Ex.1) appears at first to be a genuine expression of interest because it is on letterhead of "LBC Capital" and it expresses an interest in making a real estate loan for $8,600,000. But the person who executed the Refi LOI is Vladimir Isperov (as a "Private Money Specialist") and he is the same person who (as a real estate agent with "Lending Bee, Inc.") provided the BPO of $8.5 million to $9 million (dkt. 30, Ex.3, at p.18). It seems incredible that a lender would have a genuine intent to loan $8.6 million on property that it believes might only be worth only $8.5 million.
Notwithstanding all of the foregoing deficiencies in Debtor's valuation evidence, this Court bears in mind that under section 362(g) it is Jain Trust's burden to establish a lack of equity in the property (one of the elements of section 362(b)(2)). Although Debtor's evidence is highly questionable, the tentative ruling is to find that Debtor's evidence has some (slight) weight, and Jain Trust has presented no evidence at all. Therefore, on the present record, the tentative ruling is to find that the value of the subject property is $9 million. (The true value could be significantly different - the tentative ruling is only that this is the value based on the present, very incomplete record.)
Based on that $9 million value, Jain Trust cannot show that Debtor lacks any equity in the property (for purposes of section 362(b)(2)), but it can show that the equity cushion is too small to provide adequate protection (for purposes of section 362(d)(1)). In addition, Debtor's August monthly operating report does not reflect any payments to Jain Trust (dkt. 75), so Debtor does not appear to be providing any such payments as an alternative form of adequate protection.
In these circumstances the tentative ruling is that the only way to provide adequate protection to Jain Trust, short of terminating the automatic stay, is to set a relatively short deadline for Debtor to sell or refinance the property. The tentative ruling is to set a deadline of approximately the time that Jain Trust itself would need to sell or refinance the property if it had possession of the property as of the date of the hearing. This Court estimates that time at approximately four months.
Section 362(d)(4)
Debtor argues (dkt.78) that the unauthorized transfer of an interest in the property occurred before the foreclosure process commenced, not
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afterwards, so allegedly there is no nexus with any act to hinder, delay, or defraud Jain Trust in its foreclosure efforts. Debtor also argues that she had legitimate (if misguided) reasons to engage in the transfer: she asserts that the property had been owned by her husband for many years before being transferred to the borrower, Nandini, Inc., and a 50% interest was transferred back to Debtor because no lender would refinance the property under the corporate name.
Debtor's alleged reasoning does not make sense to this Court. The transfer of a 50% interest in the property, without authorization from Jain Trust, is suspect in itself; and Debtor's explanation lacks foundation or corroboration, such as details of which lenders allegedly told her she had to do this.
Nevertheless, the tentative ruling is that, while suspect, the unauthorized transfer has not been shown to be part of a scheme to hinder, delay, or defraud Jain Trust within the meaning of section 362(d)(4). Rather, the tentative ruling is that on the present record Debtor appears to have intended to refinance, sell, or develop the property, and although she has acted with some panic, confusion,and denial that is typical for debtors, the evidence is not (quite) enough to show that when she filed her bankruptcy petition that was part of a scheme to hinder, delay, or defraud Jain Trust.
Alleged unclean hands
Debtor aruges that Jain Trust has unclean hands because it knew that the property was her residence, and it required corporate ownership of the property to get around consumer protection or usury laws. The tentative ruling is that, even if a lender (and borrower(s)) structure their transaction so as not to run afoul of various legal limitations, that does not amount to unclean hands.
Conclusion
The tentative ruling is to set a deadline for Debtor to close the sale or refinancing the property, pursuant to this Court's written order authorizing a specific sale or refinancing, failing which Jain Trust will have relief from the automatic stay to foreclose. Debtor should bear in mind that any sale or refinancing will need to satisfy the applicable standards under the Bankruptcy Code, including the procedural requirements for notice and a hearing. The tentative ruling is to set that deadline at approximately four months from the hearing date, or 2/19/19.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
Movant(s):
Jain 2012 Gift Trust DBA Mirada Represented By
Martin W. Phillips
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 29
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Melba Lourdes Nunez-Cardenes Represented By
Richard McAndrew
Movant(s):
Wells Fargo Bank, N.A. d/b/a Wells Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK
vs DEBTOR
Docket 45
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Kelley Diane Settles Represented By Donna R Dishbak
Movant(s):
Wells Fargo Bank, N.A. dba Wells Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PABLO ARTURO CARDOZA
vs DEBTOR
Docket 30
- NONE LISTED -
Debtor(s):
Martha Martinez Represented By Julie J Villalobos
Movant(s):
Jesus Diaz Munoz Represented By Mark J Markus
Pablo Arturo Cardoza Represented By Mark J Markus
Trustee(s):
Kathy A Dockery (TR) Pro Se
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JENNIFER GUHLIN
vs DEBTOR
Docket 132
Appearances required. The tentative ruling is to grant relief from the automatic stay as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Procedural issues
Debtor's counsel is correct that service was a couple of days late and service should have been on both Debtor and Debtor's attorney (Rule 7004 (g), incorporated by Rule 9014(b), Fed. R. Bankr. P.). Nevertheless, (a) the fact that Debtor's attorney has responded shows that Debtor has had notice (Debtor's counsel could not ethically respond without communicating with Debtor, so Debtor must have had notice), (b) Debtor has already had far more than the one week period permitted by the Local Bankruptcy Rules to respond, so presumably there is no prejudice (nor does Debtor allege any prejudice), and (c) Debtor makes no attempt to contest any of the merits of the motion. For all of these reasons Debtor has waived any arguments that this Court should deny the motion for lack of proper service or on the merits. Alternatively, Debtor has forfeited such arguments. In re Hamer, 138 S.Ct.
13, 17 n.1 (2017) (distinguishing forfeiture and waiver); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (holding, in different context, that consent need not be express); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (same, and analyzing presumed consent)
Alternatively, this Court has discretion to grant relief from the automatic stay without full notice (see Rule 4001(a)(2), Fed. R. Bank. P.), and the
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tentative ruling is that such relief is appropriate in the circumstances. Such relief is particularly appropriate given that Movant is not represented by an attorney, and has fully complied with the spirit of the Rules, as well as their letter as set forth above.
Merits
Movant seeks to continue prosecuting her small claims action to recover a leasehold security deposit and prepaid rent. Several of Movant's arguments are unpersuasive. But other, alternative arguments are persuasive.
No mandatory abstention
Movant has not established that mandatory abstention applies. Under 28 U.S.C. 1334(c)(2), mandatory abstention requires that the action be in existence prepetition, and Movant alleges that it did not arise until postpetition.
Consumer debts
Movant argues that the debt at issue is not a "consumer debt" so the codebtor stay of 11 U.S.C. 1301 is inapplicable. But the lease states that it is for a personal residence (dkt. 132, Ex.E, at PDF p.24) so Movant's argument is not persuasive.
Postpetition nature of action
This Court is not persuaded by Movant's argument that her action does not violate the automatic stay because it arose postpetition. The automatic stay prevents any act to obtain possession "of property of the estate or of property from the estate" (11 U.S.C. 362(a)(3)) and the motion concedes that debtor is married to the lessor, so on this record the movant has not shown that the estate lacks a community property or other interest in the bank account holding the security deposit. Therefore, the action is an act to obtain property either "of" the estate or, at least, "from" the estate.
Recovery primarily from third party/enforcement against Debtor/estate
Movant asserts that recovery will be primarily from third parties (i.e., Debtor's wife, as landlord) and that no enforcement will be sought against Debtor or the estate. The latter assertion appears to be incorrect. As noted above, Movant has not established that Debtor lacks any interest in the bank account in which the security deposit is held or, if Debtor's wife has not held security deposits in a segregated bank account, that Debtor's community
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property will not be liable for the dollar amount of the security deposit (plus interest and any other charges). So Movant's argument that recovery will not be sought against Debtor or the estate is unpersuasive.
Nonbankruptcy forum is most efficient
Movant is persuasive in arguing that it is most efficient for this security deposit issue to be litigated in nonbankruptcy court as a small claims matter. The procedural rules and procedures applicable in small claims matters are well suited to this dispute. Considering this issue and all other typical factors in deciding this sort of motion, this Court is persuaded that there is "cause" for relief under 11 U.S.C. 362(d)(1). See In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990); In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP
2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr.
C.D. Cal.2004); In re Curtis, 40 B.R. 795, 799–800 (Bankr. D. Utah 1984).
Termination of automatic stay
For the foregoing reasons the tentative ruling is to terminate the automatic stay under 11 U.S.C. 362(d)(1). In addition, the tentative ruling is to terminate any co-debtor stay (11 U.S.C. 1301(c)) because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362 (a).
Retroactive relief
The tentative ruling is to grant the request for retroactive annulment of the stay, based on the allegations in the motion as supported by Debtor's declaration. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Effective date of relief
The tentative ruling is to grant the request to waive the 14-day stay provided by FRBP 4001(a)(3), because it appears that trial is set to commence on 10/24/18 on the appeal by Debtor's wife (as landlord) to the Superior Court. See dkt. 132, p.6.
Relief notwithstanding future bankruptcy cases
The motion seeks relief applicable notwithstanding any future bankruptcy cases, for a period of 180 days. The tentative ruling is to deny such relief for lack of sufficient cause shown. There is no allegation of multiple bankruptcy cases, or equivalent abuse of the bankruptcy system or similar cause for such extraordinary relief. See 11 U.S.C. 362(d)(4) and In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
James Kevin King Represented By Steven L Bryson
Movant(s):
Jennifer Guhlin Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 8
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Leon Massoth Represented By Axel H Richter
Movant(s):
Leon Massoth Represented By Axel H Richter Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 9
Grant, subject to the following conditions, and also subject to any opposition at the hearing. Appearances required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Devin Smith Represented By
Devin Sawdayi
Trustee(s):
Kathy A Dockery (TR) Pro Se
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OCWEN LOAN SERVICING, LLC
vs DEBTOR
Docket 60
Tentative Ruling for 10/16/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is
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denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Alberto Ramos Represented By Claudia C Osuna
Joint Debtor(s):
Vanessa Ramos Represented By Claudia C Osuna
Movant(s):
Ocwen Loan Servicing, LLC Represented By Seth Greenhill Keith Labell Theron S Covey Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
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WELLS FARGO BANK NATIONAL ASSOC
vs DEBTOR
Docket 30
Debtor(s):
Olivia Pino Represented By
James D. Hornbuckle
Movant(s):
Wells Fargo Bank National Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, N.A. vs
DEBTOR
Docket 28
Tentative Ruling for 10/16/18 (same as for 9/18/18 and 8/14/18): Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 31).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Araceli A Castro Represented By Thomas B Ure
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
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BANK OF AMERICA, NA
vs DEBTOR
Docket 35
Tentative Ruling for 10/16/18:
Appearances required. At the hearing on 9/18/18 this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the
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automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria Dilcia Serrano Represented By Raymond Perez
Movant(s):
BANK OF AMERICA, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
KIA MOTORS FINANCE
vs DEBTOR
Docket 37
Debtor(s):
Bernice Wallace Represented By Laleh Ensafi
Movant(s):
Kia Motors Finance Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 41
Appearances are not required.
Proposed order: Counsel for Debtor is directed to lodge a proposed order discharging this Court's order to show cause (the "OSC," dkt. 41) via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
This Court has reviewed the declaration of Debtor's counsel (dkt. 47) in response to the OSC why counsel should not be sactioned for failure to appear at a hearing on a motion for relief from the automatic stay. Counsel declares that she thought Debtor had come current on payments so the motion would be withdrawn.
The tentative ruling is that Counsel's excuse does not amount to excusable neglect because without a written withdrawal or a communication from opposing counsel it would be premature to assume that the motion would be withdrawn. In addition, although Counsel alludes to a (commendable) attempt to keep billing low, this Court notes that saving a couple of hundred dollars or so in fees but risking the loss of Debtor's vehicle is not a commendable exercise of billing discretion, and this Court's procedures for telephonic appearances make it possible to do both (keep costs low and protect Debtor's interests).
Nevertheless, the tentative ruling is that no sanctions are warranted because
(a) Debtor did not lose her vehicle (she appeared in person at the hearing on the motion for relief from the automatic stay; this Court continued that matter; and the parties agreed to an adequate protection order), (b) Counsel has been diligent in responding to the OSC, and (c) Counsel has stated that no fees will be sought for the work on the motion for relief from the automatic
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stay (dkt. 47, p.5:19-21).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bernice Wallace Represented By Laleh Ensafi
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PARAMOUNT RESIDENTIAL MORTGAGE GROUP
vs DEBTOR
Docket 57
Tentative Ruling for 10/16/18 (same as for 9/4/18, 8/7/18 and 6/12/18): Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 9/4/18, 8/7/18, 6/12/18 and 5/8/18 hearings, this Court continued the matter at the parties' request for more time to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
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Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it
has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Viridiana Gutierrez Represented By William G Cort
Movant(s):
Paramount Residential Mortgage Represented By
Jason A Savlov Jason C Kolbe Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
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fr. 6/12/18, 07/17/18
Docket 43
Tentative Ruling for 10/16/18 (same as for 7/17/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 7/17/18 and 6/12/18 hearings, this Court continued the matter for the parties to explore various options. There is no tentative ruling, but the parties should be prepared to inform the Court about the status of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the papers (dkt. 43, 56, 57).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Letitia Louise Wellington Represented By Sanaz S Bereliani
Movant(s):
Michael D. Madison Sr. Represented By Stella A Havkin
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
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Adv#: 2:17-01485 Gonzalez v. Macmillan et al
fr. 12/5/17, 02/13/18, 3/20/18, 4/17/18, 07/17/18, 08/14/18
Docket 1
Tentative Ruling for 10/16/18:
Appearances required. There is no tentative ruling but the parties should be prepared to address the following issues.
Background
Plaintiff filed a motion (adv. dkt. 14) for summary judgment on his first claim for relief (constructively fraudulent transfer) and the second claim for relief (declaratory relief that the purported trust is ineffective to prevent creditors from reaching the assets) in his complaint (adv. dkt. 1). This Court issued an order (adv. dkt. 31) denying summary judgment on the first claim but granting it on the second, for the reasons stated therein - principally the reasons in the Revised Tentative Ruling for 3/20/18 (reproduced below).
Defendants appealed. The District Court dismissed the appeal as interlocutory. See adv. dkt. 52, 53. The parties' joint status report states (adv. dkt. 54, p.4, sec.G) that they have executed but not filed a stipulation "that the dismissed appeal can be re-filed as an interlocutory appeal but on the condition that the trial proceed on the remaining fraudulent transfer claim for relief."
Current issues
It is not clear what the parties intend, or what procedural steps this Court should take. Whatever is in the parties' unfiled stipulation presumably will not bind the District Court (or any other court hearing the appeal) in deciding whether to grant leave to appeal this Court's interlocutory ruling, so what do the parties hope to accomplish with their stipulation? Moreover, the
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parties' stated intention to proceed simultaneously in both this Bankruptcy Court and the District Court usually is not possible because an appeal generally deprives this court of jurisdiction. Cf. Rule 54(b) (Fed. R. Civ. P., incorporated by Rule 7054, Fed. R. Bankr. P.), and compare Rule 8008 (Fed.
R. Bankr. P.). To the extent, if any, that this Court has discretion to grant any relief that would make such dual-tracking possible, is that an appropriate use of judicial resources? On a separate issue, if the plaintiff intends to proceed with the first claim for relief, does the plaintiff plan to amend the complaint to cure the deficiencies in that claim (constructively fraudulent transfer) noted in the tentative ruling for 3/20/18?
The tentative ruling is to continue this status conference to 11/6/18 at 11:00 a.m. with a deadline of 10/23/18 for the parties to file and serve whatever papers they deem appropriate to address the foregoing issues and any other relevant issues at this stage of these proceedings.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Continue to 10/16/18 at 11:00 a.m., with a brief status report due 10/2/18.
See status report (adv. dkt. 51). Appearances are not required on 8/14/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Continue to 8/14/18 at 11:00 a.m. as requested by the parties in their joint
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status report (see adv. dkt. 50), with a brief status report due 7/31/18. Appearances are not required on 7/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should apprise this court about the status of any appeals or other matters (see dkt. 31, order granting in part plaintiff's motion for summary judgment, and dkt. 35, notice of appeal). The tentative ruling is to set a continued status conference for 7/17/18 at 11:00 a.m., with a brief status report due 7/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/20/18:
Appearances required.
Motion for summary judgment (adv. dkt. 14-18, the "MSJ"); opposition papers (adv. dkt. 22-25); and reply papers (adv. dkt. 26-27). The tentative ruling is to deny in part and grant in part the MSJ, as set forth below.
Legal standards. The legal standards governing motions for summary judgment are well known, do not appear to be disputed by the
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parties, and need not be repeated in this tentative ruling.
First claim for relief (fraudulent transfer). Although the complaint (adv. dkt.1) asserts fraudulent transfer claims under both California law and the Bankruptcy Code, the MSJ limits this to 11 U.S.C. 548. The MSJ also asserts only constructive, not actual, fraud. See adv. dkt. 14, pp.2:21-3:1.
The complaint alleges less than reasonably equivalent value (11
U.S.C. 548(a)(1)(B)(i)) - namely, transfers by the debtors/defendants for no value from the debtors and/or their revocable trusts (the assets of which apparently could be reached by creditors) to irrevocable trusts. But to establish the elements of a constructively fraudulent transfer the plaintiff must also establish one of three types of insolvency (commonly referred to as "balance sheet," "inadequate capital," or "cash flow" insolvency) or else a transfer to an insider under an "employment contract." See 11 U.S.C. 548(a) (1)(B)(ii)(I)-(IV). There is no allegation about any employment contract, so the plaintiff must establish some type of insolvency.
The MSJ refers to balance sheet insolvency (11 U.S.C. 101(32A)). But the complaint never alleges that type of insolvency, so the plaintiff cannot be granted partial summary judgment as to that element (11 U.S.C. 548(a)(1)(B) (ii)(I)).
The complaint alleges inadequate capital and inadequate cash flow (in language that roughly parallels 11 U.S.C. 548(a)(1)(B)(ii)(II)&(III)). But the MSJ extrapolates that those types of insolvency could be presumed based on the bankruptcy schedules many months after the transfer, and from the sheer number of lawsuits and eventual judgments against the defendants and other circumstantial evidence. Those things might (or might not) be persuasive at trial, but they are insufficient to establish a lack of genuine issue of fact.
Second claim for relief (declaratory relief related to nature of the trusts). The complaint (adv. dkt. 1, para. 23) seeks a declaratory judgment (i) that the debtors/defendants are "beneficiaries" of the trusts within the meaning of California Probate Code 15304, (ii) that the benefits the debtors/defendants receive from the trusts are "property of the estate" under 11 U.S.C. 541, and (iii) that the trusts qualify as "self-settled trusts" under California law, which the MSJ uses as shorthand for a trust the assets of which are reachable by creditors.
Various provisions of the Bankruptcy Code define what property is part
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of the bankruptcy estate:
The bankruptcy estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). It does not include, however, "any power that the debtor may exercise solely for the benefit of another," 11
U.S.C. § 541(b)(1), nor does it include "[p]roperty in which the debtor holds ... only legal title and not an equitable interest." 11
U.S.C. § 541(d). Similarly, the estate does not include property containing "[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law." 11 U.S.C. § 541(c)(2). [In re Cutter, 398 B.R. 6, 18-19 (9th Cir. BAP 2008).]
Under California law:
If the settlor is a beneficiary of a trust created by the settlor and the settlor’s interest is subject to a provision restraining the voluntary or involuntary transfer of the settlor’s interest, the restraint is invalid against transferees or creditors of the settlor. The invalidity of the restraint on transfer does not affect the validity of the trust.
If the settlor is the beneficiary of a trust created by the settlor and the trust instrument provides that the trustee shall pay income or principal or both for the education or support of the beneficiary or gives the trustee discretion to determine the amount of income or principal or both to be paid to or for the benefit of the settlor, a transferee or creditor of the settlor may reach the maximum amount that the trustee could pay to or for the benefit of the settlor under the trust instrument, not exceeding the amount of the settlor’s proportionate contribution to the trust. [California Probate Code 15304]
The California Supreme Court has held that to the extent that the settlor of a trust is also a beneficiary, creditors can reach the property held by the trust:
It is against public policy to permit a man to tie up his property in such a way that he can enjoy it but prevent his creditors from reaching it, and where the settlor makes himself a beneficiary of a trust any restraints in the instrument on the involuntary alienation of his interest are invalid and ineffective. Since [the settlor] was
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the sole beneficiary, all the property in the trust is subject to the claims of his creditors. [Nelson v. Cal. Trust Co., 33 Cal.2d 501, 501-02 (1949) (emphasis added)]
These principles have been more recently reaffirmed in a decision of
the Ninth Circuit Court of Appeals:
[U]nder California law, a settlor of a spendthrift trust cannot also act as beneficiary of that trust (i.e., California law prohibits "self-settled" trusts). See Cal. Prob.Code § 15304(a) (West 1987). California law voids self-settled trusts to prevent individuals from placing their property beyond the reach of their creditors while at the same time still reaping the bounties of such property. See Nelson v. California Trust Co., 33 Cal.2d 501, 202 P.2d 1021,
1021 (Cal. 1949). [In re Moses, 167 F.3d 470, 473 (9th Cir.
1999)]
In addition, the MSJ cites authority that if beneficiaries exercise "excessive" control over a trust then under California law they cannot "shield that trust with an anti-alienation provision lacking true substance." In re Moses, 167 F.3d 470, 473 (9th Cir. 1999) (citation omitted) (emphasis added). See also In re Cutter, 398 B.R. 6, 22 (9th Cir. BAP 2008). MSJ (adv. dkt. 14, p.10:1-14).
The debtors argue that their situation is different from that in Cutter because "the Debtor in Cutter could potentially use all the Trust's principal and income to maintain his standard of living, without limitation" whereas "[t] here is no such provision" in the debtors' trusts. Dkt. 22, p.3:22-26 (italics added to case name). That distinction of Cutter (and the other authorities cited above) is unpersuasive.
The MSJ points to the following facts in support of its argument that (i) the debtors are also beneficiaries and (ii) the anti-alienation provisions of the trust lack "true substance." The debtor/defendants do not raise any genuine contrary issues of fact.
The debtors deducted mortgage interest and real estate taxes on their 2015 tax returns. See dkt. 18, p.4:5-9 (and evidence cited therein).
During the "initial period" of the trusts (the earlier of the grantors' deaths or 16 years) the debtors can continue to live in the property rent-free. See Dkt. 18, p.4:10-15 (and evidence cited therein).
During that same period, any net income or excess cash is
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distributed to the debtors. See Dkt. 18, p.4:16-21 (and evidence cited therein).
The debtors can manage the property as "absolute owners."
See Dkt. 18, p.4:22-28 (and evidence cited therein).
The debtors can loan money to themselves and/or use the property to secure loans to themselves. See Dkt. 18, p.5:2-7 (and evidence cited therein).
During their lifetime, the debtors can make discretionary distributions to their children, and upon their deaths the trust assets are to be distributed to their children. See Dkt. 18, p.5:8-12 (and evidence cited therein).
Based on the foregoing, it appears that the debtors are indeed beneficiaries of the trusts to a large extent, and moreover the anti-alienation provisions of the trust lack "true substance" as that term has been used in the cited authorities. Accordingly, the tentative ruling is to grant the MSJ on the second claim for relief.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20). The parties should be prepared to address whether there are any non- mooted matters left to resolve in this adversary proceeding, if this Court is not persuaded to depart from the foregoing tentative ruling on the MSJ.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/13/18:
Continue this status conference to be concurrent with the hearing on the pending summary judgment motion, which is presently scheduled for 3/20/18
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at 11:00 a.m. Appearances are not required on 2/13/18.
This court has reviewed the parties' late-filed joint status report (adv. dkt. 10, 11) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (at the hearing on 12/5/17). See also adv. dkt. 10, 11.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 5) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure
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to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
This court recognizes that, at least at this stage, the attorney who filed the answer (dkt. 4) for both trustees of the trust has also executed the Status Report (dkt. 5) on behalf of one of the defendant trustees (the debtor/defendant) asserting that neither of them can consent to this Bankruptcy Court entering a final judgment because third party beneficiaries of the trust allegedly have a right to have their rights litigated "outside of this venue." Counsel for the answering defendants should be prepared (a) to explain whether this is a Stern objection or something else and (b) whether both answering defendants or only one of them takes this position, and if the former, why he did not execute the status report on behalf of both of them.
Counsel for the plaintiff should be prepared to address whether the plaintiff contends that there are no additional parties who need to be joined, and why.
Mediation. The plaintiff suggests in the Status Report (adv. dkt. 5) that mediation, if any, should not be ordered before dispositive motion(s) are heard, which the plaintiff anticipates will be by 3/1/18. The tentative ruling is to revisit the issue of mediation after that date.
Deadlines: This adversary proceeding has been pending since 9/26/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 3/1/18 Expert(s) - deadline for reports: 2/20/18
Expert(s) - discovery cutoff (if different from above): 3/1/18 Dispositive motions to be heard no later than: 3/13/18 Joint Status Report: 1/30/18
Continued status conference: 2/13/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 4/10/18 Pretrial conference: 4/17/18 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to
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chambers), including direct testimony by declaration unless excused: 4/19/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 4/23/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:18-01030 Construction Laborers Trust Funds for So Calif v. GRAYSON
fr. 4/10/18, 4/17/18, 5/22/18, 6/12/18
Docket 1
Tentative Ruling for 10/16/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following issues.
Current Issues:
District Court Litigation: On 6/12/18 this Court granted relief from the automatic stay (main case dkt. 123) to proceed with related litigation before the District Court. The parties shoud be prepared to address the status of the District Court litigation, and any other matters bearing on resolution of this matter.
Joint Status Report: Per this Court's adopted tentative ruling for 6/12/18 (reproduced below), the parties were required to submit a joint status report on 10/2/18. No such report was filed. The parties should be prepared to address why the joint status report was not filed as ordered.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Continue status conference to 10/16/18 at 11:00 a.m. for the reasons stated
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below. Appearances are not required on 6/12/18.
Current Issues.
(1) Motion to Dismiss (adv. dkt.7). At the hearing on 4/17/18, this Court was persuaded to defer ruling on the motion to dismiss in view of the possibility that the issues would be litigated before the district court. On 5/9/18 plaintiff filed a motion for relief from stay to proceed with the district court litigation (2:16-bk-24010-NB, dkt. 117) (the "R/S Motion") and scheduled a hearing for this date on the 10:00 a.m. calendar. This court's tentative ruling for the R/S Motion is to grant that motion. Therefore, the tentative ruling for this matter is to take the motion to dismiss off calendar without prejudice to resetting it or filing appropriate papers after the district court litigation has been resolved.
(2 Deadlines: In viewof this Court's tentative ruling on the R/S Motion, the tentative ruling is to continue this status conference to the date and time stated at the start of this tentative ruling. The parties are directed to file a joint status report by 10/2/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Continue to 6/12/18 at 11:00 a.m. for the reasons stated in the status report (adv. dkt. 16). Appearances are not required on 5/22/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required. The court has reviewed the debtor’s motion to dismiss (dkt. 7), Plaintiff’s opposition (dkt. 14), the parties' joint status report (dkt. 9), Notice of Related District Court Case (dkt. 12) and the other filed documents and records in this adversary proceeding.
Paragraph "(2)" below is the tentative ruling on the motion to dismiss.
Paragraphs "(1)," "(3)," and "(4)" below are Judge Bason's standard requirements for status conferences, with additional provisions specific to this matter. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
With respect to this specific matter, although nondischargeability complaints are prototypically "core" bankruptcy matters, this Bankruptcy Court is concerned about possible duplication of litigation and infringement on the District Court's management of the related nonbankruptcy action pending in that Court since 6/16/17. Should this Bankruptcy Court grant relief from the automatic stay (on this Court's own motion or the motion of either party) so
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that such litigation can proceed, and meanwhile hold this nondischargeability action in abeyance? Alternatively, are other approaches preferable, such as removal, or withdrawal of the reference, or bifurcation of issues? The parties are directed to address what is the most appropriate and efficient way to proceed.
Motion to Dismiss (dkt. 7)
The legal standards applicable to a motion to dismiss will not be repeated here because they are well known and have been summarized in the parties' filed papers. The tentative ruling is to grant the motion to dismiss the first and second claims for relief, with leave to amend, for the following reasons.
11 U.S.C. 523(a)(2)(A): false representation etc.
The debtor/defendant seeks dismissal of the first claim for relief, under section 523(a)(2)(A), on the ground that the plaintiff has not alleged that he obtained money, property, services, or credit from plaintiff as a result of the alleged fraud. The debtor/defendant argues (adv. dkt. 7, pp.6:23-7:3) that any alleged misrepresentations occurred in reports filed after the employees had performed services for the prior month and therefore after the debt was incurred, so the money or property at issue was not "obtained by" the alleged fraud.
On the one hand, the motion to dismiss is not entirely persuasive on this point. Reading the complaint in the light most favorable to the plaintiff as this Court must do when addressing a motion to dismiss, the complaint (adv. dkt. 1, p.1, para. 25) alleges that as a result of an ongoing pattern of false reports the Trust Funds (whom the plaintiff represents) missed opportunities to assert claims against the debtor/defendant's general contractors, which allegedly would have resulted in recovery of funds to cover the dollar amounts owed to the Trust Funds. In other words, if the Trust Funds had known of the (allegedly) false representations in those reports (or the allegedly fraudulent nature or false pretenses in those reports) then, allegedly, the Trust Funds could have pursued remedies that apparently are no longer available to them, so the fact that the reports were filed after the services were rendered each month is not dispositive.
But the complaint does not explain how the Trust Funds' missed opportunity amounts to obtaining money, property, services, or credit from plaintiff as a result of the alleged fraud. Rather, it appears that the (allegedly)
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false reports enabled the debtor/defendant to continue obtaining services from the employees (without providing those employees all of the compensation to which they were owed, in the form of funds that should have been transferred to the Trust Funds for the benefit of the employees).
Compare In re Kay, 60 B.R. 174, 176 (Bankr. C.D. Cal. 1986) (liability based on fact that "the employee beneficiaries" sustained damages as "the proximate result of the defendants' representations") (emphasis added).
In sum, there are not enough allegations in the complaint to show a causal connection between the alleged falsehoods of the debtor/defendant and some sort of damage to the plaintiff. It is possible, of course, that the plaintiff stands in the shoes of the employees for these purposes, but the complaint does not include sufficient allegations (or copies of documents) for this Court to read the complaint that way. It is also possible that the plaintiff itself has been damaged - e.g., perhaps the plaintiff is liable to the employees if it did not detect and cure the alleged falsehoods in the debtor/defendant's reports, and thus the plaintiff itself has been damaged - but again the complaint does not include sufficient allegations (or copies of documents) for this Court to read the complaint that way.
For all of these reasons, the tentative ruling is to grant the motion to dismiss the first claim for relief, with leave to amend. The tentative deadline for filing an amended complaint is 5/1/18.
The debtor/defendant has raised a separate argument with respect to the first claim for relief. The tentative ruling, however, is to reject the debtor/defendant's alternative argument (adv. dkt. 7, pp.7:23-8:5) that, under Rule 9(b), Fed. R. Civ. P. (incorporated by Rule 7009, Fed. R. Bankr.P.), the complaint is not sufficiently precise about the amount of hours that were falsely under-reported in each report. The complaint sufficiently apprises the debtor/defendant of the grounds of the alleged fraud, and any greater specificity is a matter for discovery and proof at trial, not a defect in pleading.
11 U.S.C. 523(a)(4): fraud or defalcation while acting in a fiduciary capacity, etc.
The debtor/defendant seeks dismissal of the second claim for relief, under section 523(4), on the ground that the complaint lacks sufficient allegations that he is a fiduciary with respect to the funds at issue. The tentative ruling is that this is correct.
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The complaint alleges that "amounts withheld from employee wages
meant to be transmitted to the Vacation Trust" became assets of that trust "'as of the earliest date on which such contributions ... can reasonably be segregated from the employer's general assets.'" Complaint (adv. dkt. 1), p. 8, para.30 (emphasis added, quoting 29 C.F.R. 2510.3-102). In response the debtor/defendant argues (adv. dkt. 7, pp.9:12-15): "Plaintiff has failed to allege that such withholdings actually occurred and when such employee wage withholdings could be 'reasonably segregated from the employer’s general assets.' Without such allegations, Plaintiff has failed to adequately allege that plan assets are at issue." (Emphasis added.)
To illustrate, consider the following hypothetical situation. Suppose that the debtor/defendant was paid $10X by a customer, but had obligations at that time of $15X consisting of $5X owed to employees for their base pay,
$1X that should have been transmitted to the Vacation Trust but was not, and
$9X for various other business expenses such as rent and income taxes. Did the $1X ever become segregated (withheld from wages) to the extent that it became a separate fund as to which the debtor/defendant had fiduciary obligations, or was the $1X only one contractual debt among many, with no segregated fund and therefore no associated fiduciary obligations?
In a similar vein the debtor/defendant also argues (adv. dkt. 7, pp.9:16- 10:17) that the allegations about purported control over plan assets are conclusory, that unpaid contributions to employee benefit funds are not plan assets, and that there are insufficient allegations in the complaint to establish that there was any pre-existing fiduciary relationship. The tentative ruling is that all of these arguments are persuasive.
The debtor/defendant cites persuasive authority in support of the foregoing analysis. It is one thing if an employer misuses employee contributions to a trust fund, but if the funds have never reached the employee and instead are contributions that the employer was supposed to make then the failure to pay that contribution is not, by itself, enough to establish a fiduciary relationship with respect to those funds. See In re Quinones, 537 B.R. 942, 945 n.2 (Bankr. N.D. Cal. 2015) (distinguishing employer contributions "from the situation where an employer has control over funds that were withheld from employees' paychecks"). The complaint does not include sufficient allegations to determine which type of contribution is at issue.
In sum, the complaint does not contain enough allegations about the
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precise relationships among the parties so as to be able to figure out when the debtor/defendant's duties arose and to whom. The tentative ruling is to set the same deadline to amend the complaint as for the first claim for relief.
Unless this Court is persuaded to depart from the foregoing tentative ruling it will be adopted as this Court's final ruling on the motion to dismiss. The debtor/defendant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge) at this time? The tentative ruling is to set a deadline of 5/1/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 2/5/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): TBD Expert(s) - deadline for reports: TBD
Expert(s) - discovery cutoff (if different from above): TBD Dispositive motions to be heard no later than: TBD
Joint Status Report: 6/5/18
Continued status conference: 6/19/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 4/17/18 at 11:00 a.m. to be heard concurrently with defendant's motion to dismiss. Appearances are not required on 4/10/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
Defendant(s):
RICKY TYRONE GRAYSON Represented By Ryan A. Stubbe
Plaintiff(s):
Construction Laborers Trust Funds Represented By
Marsha M Hamasaki Jeffry D Sackman
Trustee(s):
Brad D Krasnoff (TR) Represented By
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Eric P Israel Sonia Singh
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Adv#: 2:18-01218 John R. Lobherr, Incorporated v. Chyun
Cont'd Status Conference re: Complaint 1) To determine Non-Dischargeability of Debt Pursuant to 11 U.S.C. Section 523(a)(2)(A); 2) For Denial of Discharge Pursuant to 11 U.S.C. Section 727(a)(2)(A); 3) For Denial of Discharge Pursuant to 11 U.S.C. Section 727(a)(4)(A); 4) For Denial of Discharge Pursuant to 11
U.S.C. Section 727(a)(5); and 5) For Denial of Discharge Pursuant to 11 U.S.C. Section 727(a)(8)
fr. 09/04/18, 9/18/18
Docket 1
Debtor(s):
Sang Chyun Represented By
Donald E Iwuchuku
Defendant(s):
Sang Chyun Represented By
Donald E Iwuchuku
Plaintiff(s):
John R. Lobherr, Incorporated Represented By Stephen P Reider Robert P Goe Stephen Reider
Trustee(s):
Elissa Miller (TR) Pro Se
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Docket 7
Tentative Ruling for 10/16/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to discuss what progress has been made in negotiation with secured creditor Wells Fargo Bank, N.A. (Class 2B in the debtor's draft Plan, dkt. 47). This Court is aware of the motion to approve the stipulation with the holder of Class 2A claims, Bank of New York Mellon (the "Mellon Stip," dkt. 52). The tentative ruling is to move the Mellon Stip hearing from 11:00 a.m. to 1:00 p.m., and continue this status conference to the same date and time, with no written Status Report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Appearances required.
Current issues. This Court has reviewed the debtor's draft plan (dkt. 47) and disclosure statement (dkt. 46) and this Court has no issues to raise sua sponte. Has the debtor had any negotiations with secured creditors? Is it more appropriate to allow additional time for such negotiations, or to authorize the debtor to mail a voting package to all parties in interest and set a
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combined hearing on final approval of the disclosure statement and confirmation of the plan for the same time and date as the continued status conference set forth below?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement (dkt. 46, 47)*: See above.
Continued status conference: 10/16/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue as set forth below. Appearances are not required on 8/7/18.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 9/4/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. The debtor's proofs of service continue to be defective. Elizabeth Cruz declares that she has served the "PROOF OF SERVICE" itself, not the underlying orders. See dkt. 20 at PDF p.2 and dkt. 31 at PDF p.2.
At the hearing counsel is directed to explain why the proofs of service are defective, and what steps will be taken to correct this issue so that it no longer occurs. The deadline is 6/19/18 to file further amended proofs of service of both orders (the order setting principal status conference etc. at dkt. 6, and the bar date order at dkt. 23).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). See above.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/7/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 13). Counsel must address:
Income as of petition date or current? The debtor has filed an amended bankruptcy Schedule I (dkt. 30). Is that actually intended to be a decaration of postpetition income, or a correction of the debtor's income as of the petition date?
Amended budget motion? Should an amended budget motion needs to be filed and served, or is such notice unnecessary and should the budget be deemed amended, in view of what appears to be an increase of approximately $168 in the debtor's monthly income (compare dkt. 13 at PDF p.8, debtor's personal income of $2,800, with dkt. 30, line 7, debtor's personal income of $2,968)?
Cash collateral motion (dkt. 12). Grant on a final basis, on the same terms as the interim order (dkt.24).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). Note: Timely served? Per the proof of service (dkt. 26, the "POS") the debtor served the POS itself on creditors. Presumably the debtor means that she served the order on creditors (not the POS), but the debtor is directed to file an amended POS saying so, no later than 5/3/18.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Failure to serve order. This Court's order setting this status conference (dkt. 6) directed the debtor to serve a copy of that order on all parties in interest no later than 14 days prior to this status conference. No proof of service appears on the docket. The tentative ruling is to set a deadline of 4/11/18 for the debtor to effect such service, with a caution to counsel that in future such failure may result in sanctions.
Budget motion (dkt. 13). Grant on an interim basis, with a final hearing on the same date at the continued status conference set forth below.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
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Docket 6
Tentative Ruling for 10/16/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Cout has reviewed debtor's status report (dkt. 50) and other relevant pleadings.
Plan (dkt. 47) and Disclosure Statement (dkt. 48). These documents are incomplete and confused. But the tentative ruling is that there is no need to proceed with these documents if Debtors are going to proceed with a proper motion to refinance and pay all creditors in full (as stated in their status report).
Proposed refinance. The claims register lists total claims fo
$419,929.77 as of the petition date (of which $366,270.15 are listed as secured and $150.29 as priority). The proposed refinance would generate loan proceeds of $463,000. This appears to be sufficient to pay all claims, probably including postpetition interest, although perhaps not including 100% of asserted administrative expenses. Counsel for the debtor should be prepared to address (i) the form of motion he intends to file, (ii) whether that motion will seek authority to pay unsecured claims, and (iii) whether unsecured claims will be paid out of escrow or by some other means and, if the latter, who will hold the net proceeds after payment of secured claims.
Dates/Deadlines. This case was filed on 5/28/18.
Bar date: 9/4/18 (timely served, dkt. 23, 25)
Plan/Disclosure Statement*: N/A
Continued status conference: 11/27/18 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Continue to the date and time set forth below. Appearances are not required on 8/14/18.
Current issues. This Cout has reviewed debtor's status report (dkt. 38) and other relevant pleadings.
This Court does not have any issues to raise sua sponte.
Dates/Deadlines. This case was filed on 5/28/18.
Bar date: 9/4/18 (timely served, dkt. 23, 25)
Plan/Disclosure Statement*: file by 9/25/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 10/16/18 at 1:00 p.m. Brief status report due 10/2/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Appearances required by counsel for the debtor and by the debtor themselves.
Current issues. This Court has reviewed the debtors' status report (dkt. 14), and the other filed documents and records in this case.
May MOR (dkt. 18). The MOR purports to cover the period from 5/28/18 (the petition date) to 5/31/18, but is essentially blank, including the section for disclosure of existing insurance coverage (dkt. 18, pdf p. 5). Debtors should be prepared to address (i) whether they have insurance coverage on their residential real property (and any other asset requiring insurance); and, if they do (ii) whether they read the MOR and understood it prior to signing.
Case Status Report (dkt. 14).
Budget Motion. The status report says that a budget motion is not required by Judge Bason's procedures (dkt. 14, pdf p. 3), but that is not correct. See Judge Bason's Procedures, Section VII.F ("Judge Bason requires the use of local forms F 2081-2.2.MOTION.BUDGET and F 2081- 2.2.ORDER.BUDGET"). Did counsel actually review the posted procedures? The tentative ruling is to set a deadline of 6/28/18 to file and serve a budget motion.
Consumers' confidential information. The status report states that the debtors do not have possession, custody, or control of consumers' confidential information (dkt. 14, pdf p. 10), but this Court questions whether that is accurate. What about customer lists from Hey Baby Sales, Inc.? Do the debtors claim any rights to those lists? (e.g. if the case were converted to a chapter 7 case, a sale of the debtors' interest in the company took place, and the buyer wanted the customer lists, would the debtors agree they could not retain or use the lists because the lists are owned by the company?).
The debtors should be prepared to address what steps they will take to
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protect confidential consumer information, and whether a consumer privacy ombudsman is required (11 U.S.C. 332).
Deadlines/dates. This case was filed on 5/28/18.
Bar date: 9/4/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/25/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/14/18 at 1:00 p.m., brief status report due 7/31/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricardo Edmundo Lengua Represented By John A Harbin
Joint Debtor(s):
Pamela Lorraine Lengua Represented By John A Harbin
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Docket 9
Tentative Ruling for 10/16/18:
Continue as set forth below. Appearances are not required on 10/16/18.
Current issues. This Court has reviewed the debtor's status report (dkt. 39) and has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (timely served, dkt. 24).
Plan/Disclosure Statement*: TBD
Continued status conference: 11/27/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by
Tentative Ruling for 9/18/18:
Continue as set forth below. Appearances are not required on 9/18/18.
Current issues. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (timely served, dkt. 24).
Plan/Disclosure Statement*: TBD
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Continued status conference: 10/16/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Court has reviewed the docket, the debtor's amended schedules (dkt. 33), and monthly operating report no. 1 (dkt. 20, for mo. ending 6/30/18). What is the $660 "miscellaneous expense" reported on p.5? Why was that not explained in the MOR?
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (timely served, dkt. 24).
Plan/Disclosure Statement*: TBD
Continued status conference: 9/18/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Revised Tentative Ruling for 7/17/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has reviewed the debtor's filed status report (dkt. 17) and the other filed documents in this case.
Secured claims. Why does the debtor's bankruptcy Schedule D (dkt. 18 at PDF p.11) list $0 in secured claims (not even a disputed claim?) even though the status report (dkt. 17) states that the case was filed to stop foreclosure? How can creditor and this Court rely on the accuracy of the bankruptcy schedules in view of such inconsistency?
Income. The debtor's bankruptcy Schedule I (dkt. 18 at PDF pp.19- 20) lists a total of $100/mo. in income taxes, medicare and social security. It lists $0 for net income from operating a business (line 8a) despite listing multiple businesses with alleged income: "YB Design, Inc.," "Management of Rabenu Enterprises, LLC," "Babysitting services," and "Cosmetic Sales." It fails to comply with the instructions in line 8a to "Attach a statement for each
... business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." The debtor appears to be ignoring the requirements to provide disclosure as to his own income and expenses and, under this Court's order (dkt. 9, para.3), to provide equal disclosure with respect to his spouse and their businesses. How can creditors and this Court rely on the accuracy of the bankruptcy schedules and future compliance with orders of this Court in view of such non-compliance?
Deadline for compliance. The tentative ruling is to set a deadline of 7/31/18 for the debtor to file amended bankruptcy schedules correcting not only the foregoing deficiencies that this Court has identified but also any other deficiencies that the debtor and his spouse and the debtor's counsel identify after carefully reviewing the documents that the debtor has filed. If in future this Court discovers other non-compliance with the debtor's obligations to provide accurate disclosures and to comply with this Court's orders, this Court may order the dismissal or conversion of this bankruptcy case, or other remedies.
Deadlines/dates. This case was filed on 6/21/18.
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Bar date: 9/24/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 8/14/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
This court anticipates posting a tentative ruling at a later time.
consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Benjamin Saeedian Represented By Raymond H. Aver
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Docket 7
Tentative Ruling for 10/16/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. Debtor still has not lodged interim or final orders approving the use of cash collateral, or a final order approving her budget. Why not?
Deadlines/dates. This case was filed on 7/11/18.
Bar date: 10/29/18 (dkt. 26, timely served dkt. 28)
Plan/Disclosure Statement*: TBD
Continued status conference: 11/27/18 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues. This Court has reviewed the debtor's filed status report (dkt. 42) and the other filed documents in this case.
Motion of U.S. Trustee ("UST") to dismiss or convert (dkt. 21). The debtor claims to have come into compliance (dkt. 41). Does the UST have any outstanding compliance issues?
Budget motion (dkt. 15) and supplemental declaration of non- debtor spouse Jose M. Juarez (dkt. 37). Grant on a final basis. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Cash collateral motion (dkt. 14, 16). The adopted tentative ruling for the 8/14/18 hearing (reproduced at calendar no. 7, 9/18/18 at 1:00 p.m.) directed the debtor to file an order granting the motion on an interim basis. No such order has been lodged. Why not? Subject to a satisfactory answer, the tentative ruling is to grant the motion on a final basis, on the same terms as it was granted on an interim basis. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 7/11/18.
Bar date: 10/29/18 (dkt. 26, timely served dkt. 28)
Plan/Disclosure Statement*: TBD
Continued status conference: 10/16/18 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required by counsel for the debtor and by the debtor(s)
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themselves.
Current issues. This Court has reviewed the debtor's filed status report (dkt. 17) and the other filed documents in this case.
Budget motion (dkt. 15). Grant on an interim basis, with a final hearing concurrent with the continued status conference (see below), and a deadline of 8/21/18 to file declaration(s) regarding the income of the debtor's spouse (see below). Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Debtor's spouse's income. The debtor's bankruptcy Schedule I reports that the debtor's spouse is a self-employed construction contractor, but that the spouse only earns $1,500/mo. in net income. Dkt. 1, at PDF p.32, line 8a. This Court takes judicial notice that there is considerable construction activity in this geographic area. Why is that income not higher?
In addition, there is no attached statement showing gross income, expenses, and the calculation of net income. That is contrary to the instructions for line 8a, and to this Court's order that for reporting purposes any spouse is to be treated as equivalent to the debtor (dkt. 6, para.3).
Deadlines/dates. This case was filed on 7/11/18.
Bar date: 10/29/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 9/18/18 at 1:00 p.m., brief status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
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Docket 20
Grant the motion (docket no. 50) on an interim basis, subject to the conditions set forth below, with a final hearing on 11/6/18 at 1:00 p.m., and a deadline of 10/18/18 for the movant to file and serve a notice of the final hearing.
Appearances are not required on 10/14/18.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form F2081- 1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to
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remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506 (c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that
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the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
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Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
(2) Claim and Delivery; (3) Conversion; (4) Breach of Guaranty;
(5) Fraud; (6) Preliminary Injunction; and (7) Constructive Trust fr. 5/8/18, 6/12/18, 6/19/18, 07/10/18, 08/14/18, 9/4/18, 9/18/18
Docket 1
Tentative Ruling for 10/16/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 3, 10/16/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 18, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 7/10/18 (same as for 6/19/18):
Please see the tentative ruling for the Sakurai status conference (calendar no. 2, 7/10/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Appearances required.
Current Issues.
Joint Status Report and Notice of Continuances. This Court's
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5/8/18 tentative ruling (see below) was not opposed, so it became this Court's actual ruling.
This Court directed (i) Checkmate to file and serve a notice of continuances attaching and incorporating by reference the deadlines in that tentative ruling by 5/7/18, and (ii) the parties to file a brief joint status report by 5/29/18. As of the preparation of this tentative ruling, none of the parties have complied. The parties are cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Motion for TRO & Claim and Delivery (adv. dkt. 10).
Plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") has filed a stipulation (adv. dkt. 30) with defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") for turnover of equipment. But Checkmate has not provided any evidence that it has relief from the automatic stay and consent of the Chapter 7 Trustee in the RS and Fower bankruptcy cases for such turnover (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA). The tentative ruling is to set a deadline of 6/19/18 for Checkmate to file a declaration attaching evidence sufficient to establish those things, and lodge a revised proposed order to approve the stipulation.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time. Continue to 7/17/18 at 2:00 p.m., brief joint status report due 7/3/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
The tentative ruling is to continue all pending matters in this adversary proceeding to 6/12/18 at 2:00 p.m. for the reason stated below, with a brief joint status report due 5/29/18, and with a deadline of 5/7/18 for the plaintiff to file and serve a notice of continuances attaching and incorporating by
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reference the deadlines in this tentative ruling (assuming that this Court is not persuaded to depart from this tentative ruling). Appearances are not required on 5/8/18.
Current Issues. This Court has reviewed the parties' status reports (adv. dkt. 24 & 26) and the other filed documents and records in this adversary proceeding.
Motion for TRO & Claim and Delivery (adv. dkt. 10). At the 4/9/18 hearing on this motion, counsel for plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") apprised this Court of the bankruptcy filings of defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA) and requested a continuance of this hearing to allow time to obtain orders granting relief from stay with annulment. In the Joint status report (adv. dkt. 24), Checkmate states that the hearings on the relief from stay motions are scheduled for 5/15/18. Accordingly, the tentative ruling is to continue this motion to the date and time set forth at the start of this tentative ruling.
Siemens Motion to Dismiss (adv. dkt. 27, the "MTD"). Defendant Siemens Medical Solutions USA, Inc. ("Siemens") has properly self- calendared its MTD for 6/12/18 at 11:00 a.m. Siemens anticipates that it may be voluntarily dismissed by plaintiff (see adv. dkt. 24), but if that does not occur then this Court anticipates that the MTD may take 15 minutes or more to hear. This Court's practice is that matters anticipated to take 15 minutes or more are heard on the 2:00 p.m. calendar (not available for self-calendaring, except by permission of this Court). Therefore the tentative ruling is to re- calendar the MTD from 11:00 a.m. to 2:00 p.m., which is concurrent with the other matters in this adversary proceeding that are on today's calendar.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Represented By Vatche Chorbajian
George Tyler Fower Represented By Vatche Chorbajian
Siemens Medical Solutions USA Inc Represented By
Marsha A Houston
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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4/10/18, 5/8/18, 6/12/18, 6/19/18, 7/10/18, 08/14/18
9/4/18, 9/18/18
Docket 1
Tentative Ruling for 10/16/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 3, 10/16/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 18, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 7/10/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 7/10/18 at 2:00 p.m.)
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/19/18 at 2:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement (dkt. 175, 176).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 177), appear to be identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 186, 187, 188. Counsel are directed to alert this Court and the parties at the hearing if they are not.
For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/12/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 175, 176): At the status conference this Court will discuss appropriate deadlines.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required.
Current issues.
Joint Plan/Joint Disclosure Statement (dkt. 165, 166).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 167). are substantially identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 176, 177, 178. For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 5/8/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Joint Plan/Disclosure Statement* (dkt. 166, 167): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
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Current issues
Motion for Relief from Stay (dkt. 57). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt.
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90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be
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prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk- 22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100,
102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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4/10/18, 5/8/18, 6/12/18, 6/19/18, 7/10/18, 08/14/18,
9/4/18, 9/18/18
Docket 1
Tentative Ruling for 10/16/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current Issues
Chapter 11 Plan (Sakurai dkt. .295, Checkmate dkt. 221, the "Plan"); Disclosure Statement (Sakurai dkt. 296, Checkmate dkt. 222, the "D/S"). The parties should be prepared to discuss whether the Plan and D/S fully comply with the Stipulation with the Fresco Parties (D/S, Ex.1, and dkt. 266), including whether the Plan provides for the nondischargeability of the Fresco Parties' claim and the Fresco Parties' right to appoint forensic accountants. In addition, Exhibit C to the disclosure statement does not appear to include the $793,000 account pledged to Citizens Business Bank (the "Bank") or the $400,000 "note owed [by an undisclosed person] in the Sakurai case." D/S, Attachment, p.3:11-14. In addition, periods "A" through "F" on Exhibit C are confusing. In addition, Exhibit F appears to include some printing and other errors.
The tentative ruling is to set a deadline of 10/18/18 for Debtors to file a further amended Plan and amended D/S to correct these issues and lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the D/S and confirmation of the Plan for the same time as the continued status conference (see below). The tentative ruling is that the voting package should include Mr. Sakurai's declaration (Sakurai dkt. 297) but not include any of the exhibits to it, and instead include a note stating that the
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exhibits are available upon request.
In addition, the tentative ruling is that the Plan must include provisions to safeguard proceeds from the sales of property, liquidation of the bank account pledged to the Bank, and any other assets of the estate. The tentative ruling is that any proceeds must be transferred directly from escrow to a bank account from which funds cannot be released absent the signature of Debtors' counsel, upon order of this Court.
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The tentative ruling is to continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: see above.
Continued status conference: Continue the status conferences in the Sakurai and Checkmate cases to 11/6/18 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
Tentative Ruling for 9/18/18:
Appearances are not required.
Current issues.
Fresco Parties' Motions to Convert Cases (dkt. 199 & Checkmate 2:17-bk-22648-NB, dkt. 185). The tentative ruling is to tentatively approve the parties' stipulations (Sakurai dkt. 266 and Checkmate dkt. 208) as settlements of the respective motions under Rule 9019 (Fed. R. Bankr. P.), and to rule that notice of such settlements need not be provided pursuant to Rule 2002(a)(3). The cause for not requiring notice is that the motions to convert were properly served, a hearing was held, the parties who sought to be heard on that matter had an opportunity to be heard, the stipulation does not appear to result in any relief different in degree from what could have been ordered at that hearing, and to the contrary the resolution appears to be better for all creditors (and all other parties in interest) than the alternative of immediate conversion of each case to chapter 7.
Proposed orders: The Fresco Parties are directed to lodge two
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separate proposed orders (one for each settlement) via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The tentative ruling is to continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: per the parties' stipulation (dkt. 266).
Continued status conference: Continue the status conferences in the Sakurai and Checkmate cases to 10/9/18 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required.
Current issues.
Fresco Parties' Motion to Convert Cases (dkt. 199 & Checkmate 2:17-bk-22648-NB, dkt. 185). The tentative ruling is to grant Fresco's motions to convert the Checkmate and Sakurai cases to chapter 7 for the following reasons.
Gross mismanagement. The tentative finding of fact is that the debtors have grossly mismanaged their estates such that cause exists under 1112(b)(4)(B) to convert their cases. These cases have been pending for nearly a year, since 10/16/17, only very belated and half-hearted
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investigation or collection activity against Radiology Solutions and Fower - either using legal enforcement or practical steps. For example, at hearings on 11/14/17 and 1/30/18, the debtors maintained their belief that they could recover 100% on the dated receiveables from Radiology Solutions, despite this Court's expressed concerns with the debtors' counsel regarding the apparent lack of collection activity based on Checkmate's failure to use the vast panoply of litigation tools available to them, including examinations under Rule 2004 (Fed. R. Bankr. P.), other discovery tools, remedies such as immediately seeking restraining orders and injunctions, and non-litigation approaches such as pressuring Radiology Solutions and Fower by reporting their defaults to Siemens or attempting to use pressure from other suppliers, customers, government regulators, or other persons. All of those avenues should have been explored vigorously, both prepetition and postpetition, and disclosed to parties in interest in these cases.
Other "cause." The debtors appear to have run through vast amounts of money to "purchase" equipment that does not exist, and yet as set forth above they have a very cavalier attitude toward attempting to engage in discovery or collection, while continuing to insist that they expected very substantial recoveries from those sources and/or from equipment (which turned out not to exist). The tentative finding of fact is that these circumstances show not just gross mismanagement but also that the debtors are hiding facts, or they are attempting to run out the clock on possible causes of action against them or transferees of their assets, or both.
The debtors' counter-argument about the best interests of creditors is not persuasive. The debtors argue that under their liquidation analysis (Sakurai, dkt. 240, PDF p. 14, Checkmate, dkt. 194, PDF p. 17) creditors will receive faster and better recoveries if the debtors are permitted to engage in a liquidation through chapter 11, rather than converting these cases to chapter 7. There are several problems with this argument.
First, this Court questions the debtors' projected recoveries in chapter
11. The debtors have been wildly inaccurate (or have intentionally hidden the truth) before, as set forth above. This Court has no faith in the Debtors to adequately disclose and maximize the value of their remaining assets, such as the house in Japan or purported interests in that house. Moreover, this Court is concerned about the debtor's management of whatever is recovered, such as what might happen to proceeds from the sale of real property. This Court recognizes that safeguards can be attempted; but safeguards can also
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be evaded, and the tentative ruling is that the simplest and best safeguard is to appoint a chapter 7 trustee.
Second, this Court questions the debtor's projected lack of substantial recoveries in chapter 7. The tentative ruling is that the Fresco Parties have the better arguments regarding the potential benefits to unsecured creditors in a chapter 7 case (perhaps as much as 80% or more).
Third, supposing for the sake of discussion that the debtors were accurate in their projected recoveries in a liquidating chapter 11 case, and their comparison with projected recoveries in a chapter 7 case, that is not the only consideration. This Court must consider the integrity of the bankruptcy system. Given the debtors' gross mismanagement and this Court's concerns about the debtors' conduct (as described above) it appears that the only adequate safeguard of the integrity of the bankruptcy system is to convert these cases to chapter 7.
Evidentiary Objections (Sakurai, dkt. 233, 252) & (Checkmate 2:17-bk-22648-NB, dkt. 200, 204). The tentative ruling is that the history of this case and this Court's own admonishments to the debtors provides ample support for conversion, so this Court need not resolve the parties' respective evidentiary objections.
Proposed Orders. The Fresco Parties are directed to lodge proposed orders via this Court's LOU system within 7 days of the hearing.
Application to Employ KW Commercial Inland Empire (dkt. 197) and Neiman Realty (dkt. 206). If this Court adopts the tentative ruling set forth above, the tentative ruling is to continue these hearings to the date and time set forth below to allow time for the chapter 7 trustees to weigh in.
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The tentative ruling is to continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: TBD based on the outcome of the Conversion Motions.
Continued status conference: If this Court converts these cases to chapter 7, the tentative ruling is to continue the status conference in the Sakurai and Checkmate cases to 10/9/18 at 2:00 p.m. No written status report required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Continue the status conferences in this case, the related Checkmate case (2:17-bk-22648-NB), and RS/Fower adversary proceeding (2:18-ap-01602- NB) as stated below. Appearances are not required on 8/14/18.
Current issues. This Court does not have any issues to raise sua sponte.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Amended Joint Plan/Amended Joint Disclosure Statement*: TBD at the continued status conference.
Continued status conference: 9/4/18 at 2:00 p.m., to be heard concurrently with Fresco's motions to convert the Sakurai and Checkmate cases to chapter 7. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 7/10/18 (same as for 6/19/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to provide an update on the status of their negotiations, and whether all matters on calendar for today in the Sakurai and Checkmate cases (including the adversary proceeding against Fower and Radiology Solutions) should be continued to 8/7/18 at 2:00 pm., with a brief status report due 7/24/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 186, 187, 188). At the status conference this Court will address changes that need to be made to the amended disclosure statement and amended plan prior to service on creditors.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 186, 187): At the status conference this Court will discuss deadlines for filing an amended disclosure statement and plan, and whether to set hearing(s) on final approval of the disclosure statement and whether to approve the plan.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required by counsel for the debtors but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Joint Plan/ Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 176, 177, 178). At the status conference this Court will address numerous issues with these documents.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Joint Plan/Disclosure Statement* (dkt. 176, 177): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 48). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Fresco Adversary Proceeding (adv. case no. 2:17-ap-01558-NB), including motion to remand (adv. dkt. 8). The tentative ruling is that this matter will be mooted, assuming that this Court approves the parties' proposed settlement, and therefore this matter should go off calendar. The parties are reminded to file appropriate papers to have this matter dismissed once the settlement is fully implemented.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
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U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
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Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure
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statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
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Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
2:00 PM
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
2:00 PM
Application for fees and expenses [Brad D. Krasnoff, Chaper 7 Trustee] fr. 9/18/18
Docket 284
Tentative Ruling for 10/16/18:
Grant - i.e., approve the Trustee's final report and application for compensation, (dkt. 285). Debtor's objection filed 10/2/18 (dkt. 295) does not object to this report/fee application. Appearances are not required.
Proposed order: Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brian Lee Represented By
Christian T Kim
Trustee(s):
David A Gill (TR) Represented By John N Tedford Aaron E de Leest
2:00 PM
fr. 9/18/18
Docket 280
Tentative Ruling for 10/16/18:
Appearances required. The tentative ruling is to overrule Debtor's objection (dkt. 295) to the application for compensation (dkt. 280) filed by Danning, Gill, Diamond & Kollitz, LLP ("Law Firm") and the application for compensation (dkt. 278) filed by Swicker & Associates ("Accountants") for the reasons stated in parts "IV," "V" and "VI" of the reply (dkt. 297).
In reaching that tentative ruling this Court has considered the following.
On the one hand, Debtor's excuse for not filing any written response is inadequate. Debtor's excuse is that his attorney quit, but there is no explanation why Debtor did not at least file his own objection outlining his basic concerns, which he could then amend if necessary. On the other hand, the only apparent prejudice to Law Firm and Accountants from hearing a late objection instead of a timely objection is a delay of a few weeks, which has not been shown to be sufficiently prejudicial to strike the objection.
As for the merits of Law Firm's application, this Court has reviewed every daily time entry and every aspect of Law Firm's application for compensation, with particular attention to the issues raised in the objection and the reply. This Court is tentatively persuaded that Law Firm has exercised billing judgment and has billed efficiently (including a number of "no charge" items), provided sophisticated and effective services (including sensitivity to Jevic issues, for example) (dkt. 297, p.4:12-17), and is entitled to be compensated in full.
As for the merits of Accountants' application, this Court has again reviewed every daily time entry and every aspect of Accountants' application for compensation, with particular attention to the issues raised in the objection and the reply. This Court is tentatively persuaded that Accountants exercised
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billing judgment and have billed efficiently (including, for example, initially providing rough estimates of tax liabilities and later, once additional information was obtained, preparing more detailed analyses) (dkt. 278, p.4:23-26), and provided sophisticated and effective services (including, for example, having to deal with the moving target of whether the estate would be solvent or insolvent, and incomplete and changing information from Debtor). See, e.g., dkt. 278, p.5:5-9, p.8:4-9; dkt. 280, p.5:5-6 & Ex.1, p.20, entry for 1/5/18, and p.22, entries for 3/28/18 through 5/1/18; and dkt. 297, p.7:7-16, pp.13:18-14:27, and pp.18:12-20:12. This Court is tentatively persuaded that Accountants are entitled to be compensated in full.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Brian Lee Represented By
Christian T Kim
2:00 PM
Movant(s):
Danning Gill Diamond & Kollitz Represented By
John N Tedford
Trustee(s):
David A Gill (TR) Represented By John N Tedford Aaron E de Leest
2:00 PM
fr. 9/18/18
Docket 278
Tentative Ruling for 10/16/18:
Appearances required. Grant, for the reasons stated in the tentative ruling for calendar no. 5 (10/16/18 at 2:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Brian Lee Represented By
Christian T Kim
Movant(s):
Swicker & Associates Accountancy Pro Se
Trustee(s):
David A Gill (TR) Represented By John N Tedford Aaron E de Leest
2:00 PM
Docket 27
Appearances required. There is no tentative ruling but the parties should be prepared to address both the merits of the motion and procedures. This Court's order shortening time (dkt. 30) reminded counsel for Debtor to comply with this Court's posted procedures (available at www.cacb.uscourts.gov) for reconsideration motions, including efforts to obtain the Chapter 13 Trustee's consent to the requested relief. Debtor's motion (dkt. 27) and subsequent notice (dkt. 32) do not include any evidence of such compliance. Does the Chapter 13 Trustee support the motion? Have the funds been received by the Trustee?
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Fredrick Visser Represented By William G Cort
2:00 PM
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:00 AM
Docket 4
Subject to (1) confirming notice per this Court's order shortening time (dkt. 10), (2) addressing this Court's concerns in that order, and (3) any objections at the hearing, the tentative ruling is to grant the motion (dkt. 4) on an interim basis, subject to the conditions set forth below, with a final hearing on 11/27/18 at 1:00 p.m., and a deadline of 11/2/18 for the movant to file and serve a notice of the final hearing. Appearances required on 10/17/18.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate
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of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the
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secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
JDS Hospitality Group LLC Represented By Christopher J Langley Steven P Chang
9:00 AM
Docket 5
Please see the tentative ruling for the status conference (calendar no. 3, 10/17/18 at 9:00 a.m.).
Debtor(s):
JDS Hospitality Group LLC Represented By Christopher J Langley Steven P Chang
9:00 AM
Docket 1
Appearances required.
Current issues
Payroll motion (dkt. 5). As noted in this Court's order setting this hearing (dkt. 10), this Court is concerned about whether this is a self-created emergency. In addition, the parties should be prepared to address the jobs of each person who is proposed to be paid (dkt. 7, Ex.6), whether any of them are "insiders" (11 U.S.C. 101(31)), and how they will be paid if the checks do not clear and other sources of revenue do not come through. Subject to adequately addressing those issues, and (1) confirming notice per this Court's order shortening time (dkt. 10), (2) addressing this Court's concerns in that order, and (3) any objections at the hearing, the tentative ruling is to grant this motion.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Cash collateral motion (dkt.4). The tentative ruling is to grant this motion, subject to the caveats set forth in the tentative ruling for calendar no. 2 (10/17/18 at 9:00 a.m.).
Deadlines/dates. This case was filed on 10/14/18.
Bar date: TBD.
Plan/Disclosure Statement*: TBD
Continued status conference: 11/27/18 at 1:00 p.m., brief status report due 11/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish
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to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
JDS Hospitality Group LLC Represented By Christopher J Langley Steven P Chang
10:00 AM
fr. 10/17/18
Docket 4
Tentative Ruling for 10/23/18:
Please see the tentative ruling for the status conference (calendar no. 2, 10/23/18 at 10:00 a.m.).
Tentative Ruling for 10/17/18:
Subject to (1) confirming notice per this Court's order shortening time (dkt. 10),
addressing this Court's concerns in that order, and (3) any objections at the hearing, the tentative ruling is to grant the motion (dkt. 4) on an interim basis, subject to the conditions set forth below, with a final hearing on 11/27/18 at 1:00 p.m., and a deadline of 11/2/18 for the movant to file and serve a notice of the final hearing. Appearances required on 10/17/18.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation.
Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and
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subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance
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actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11
U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
JDS Hospitality Group LLC Represented By Christopher J Langley
10:00 AM
Steven P Chang
10:00 AM
Docket 1
Tentative Ruling for 10/23/18:
Appearances required.
Current issues
Cash collateral motion (dkt.4). Subject to any objections at the hearing, the tentative ruling is to authorize the use of cash collateral to a limited extent, on a further interim basis, with a final hearing at the same time as the continued status conference (see below). What specific use of cash is authorized will depend on any supplement filed prior to the hearing and how the debtor and other parties in interest address the following issues: (i) payment of employment taxes and other withholdings, (ii) payment of income taxes, (iii) payment of sales taxes on room rentals, as well as on food, beverages, and other taxable items, and (iv) adequacy of cash flow, both actual and projected.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 10/14/18.
Bar date: TBD.
Plan/Disclosure Statement*: TBD
Continued status conference: 11/27/18 at 1:00 p.m., with a status report on the local form due 11/13/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are
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required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/18:
Appearances required.
Current issues
Payroll motion (dkt. 5). As noted in this Court's order setting this hearing (dkt. 10), this Court is concerned about whether this is a self-created emergency. In addition, the parties should be prepared to address the jobs of each person who is proposed to be paid (dkt. 7, Ex.6), whether any of them are "insiders" (11 U.S.C. 101(31)), and how they will be paid if the checks do not clear and other sources of revenue do not come through. Subject to adequately addressing those issues, and (1) confirming notice per this Court's order shortening time (dkt. 10), (2) addressing this Court's concerns in that order, and
(3) any objections at the hearing, the tentative ruling is to grant this motion.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Cash collateral motion (dkt.4). The tentative ruling is to grant this motion, subject to the caveats set forth in the tentative ruling for calendar no. 2 (10/17/18 at 9:00 a.m.).
Deadlines/dates. This case was filed on 10/14/18.
Bar date: TBD.
Plan/Disclosure Statement*: TBD
Continued status conference: 11/27/18 at 1:00 p.m., brief status report due 11/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
JDS Hospitality Group LLC Represented By Christopher J Langley Steven P Chang
1:00 PM
William G. Hill as Respondent (and Leslie Richards as Responsible Professional)
fr. 6/7/18, 08/07/18, 9/18/18, 9/26/18
Docket 41
Tentative Ruling for 10/23/18:
Appearances required. The parties should be prepared to proceed with trial.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/26/18:
Appearances required. At the hearing on 9/18/18, this Court was persuaded to make this hearing a pretrial conference. This Court has reviewed the parties' joint pretrial stipulation (dkt. 58). The parties should be prepared (1) to confirm that they have reviewed Judge Bason's posted Procedures (available at www.cacb.uscourts.gov), under the "Trial practice" section, and (2) to address scheduling the trial day.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Specially set a trial and continued status conference for 9/26/18 at 9:00 a.m., in view of the order excepting these proceedings from any automatic stay that might otherwise apply in Mr. Hill's bankruptcy case (see dkt. 56, Ex.A). Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If one or more parties assert that they are unavailable on that date, then this Court will address whether to select an alternative date. In addition, the parties should be prepared to address whether this Court should approve the pretrial order proposed by the United States Trustee (dkt. 52, 53), what evidence they expect to present, and any other matters appropriate to be addressed at a pretrial/status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue to 9/18/18 at 2:00 p.m., and vacate the trial that is scheduled to commence on 8/15/18 at 9:00 a.m., in view of the automatic stay arising from the filing of the bankruptcy petition of Mr. William G. Hill (Case No. 1:18-bk-11914- VK). Appearances are not required on 8/7/18.
Analysis: First, although this Court has located authority that proceedings under 11 U.S.C. 110 are within the police and regulatory power exception to the automatic stay, that conclusion may be subject to dispute, and Mr. Hill (and the Office of the United States Trustee) have not had the opportunity to brief that issue. See In re Hernandez, 66 Collier Bankr.Cas.2d 1022 at n.9 &
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accompanying text (Bankr. D. Colo. 2011). See also In re Dingley, 852 F.3d 1143 (9th Cir. 2017) (civil contempt proceedings exempted from automatic stay when intended to effectuate court's public policy interest in deterring litigation misconduct).
Second, regardless whether the automatic stay applies, the tentative ruling is that continuing this matter is in keeping with the spirit of the "breathing spell" that bankruptcy is supposed to afford. This Court recognizes that the debtor may be very much in need of whatever funds could be owed to him by Mr. Hill, but any delay from the automatic stay is unlikely to last long.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Appearances required. The parties have raised a number of disputed issues, including issues of credibility (attorney Leslie Richards, Esq. blaming former attorney William G. Hill and vice versa), that appear to require an evidentiary hearing. The parties are directed to address when this Court should schedule such a hearing.
In addition, the parties should be prepared to address whether 11 U.S.C. 110 can encompass liability against an attorney, as argued by the United States Trustee ("UST"). See dkt. 41, pp.2, 7-9, & nn.2 & 8). The parties should also be prepared to address whether this Court should grant any additional time for the UST to file additional or amended papers with respect to Ms. Richards.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Johnnie L. Fields Represented By Leslie Richards
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 113
Tentative Ruling for 10/24/18:
Deny, without leave to amend. Appearances required.
Proposed order: The Chapter 7 Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling (subject to any additional or different rulings at the hearing). See LBR 9021-1(b)(1)(B).
Mr. Layfield's motion
Mr. Layfield seeks to dismiss this case, primarily on the ground that Mr. Wakefield was not authorized to file it. Mr. Layfield has the initial burden under 11 U.S.C. 1112 to establish cause by a preponderance of the evidence. 7 Collier on Bankruptcy Para. 1112.04[4] (16th Ed.).
The following analysis is based on this Court's extensive review of the relevant filed documents and records in this case, including the bankruptcy petition (dkt. 1), Mr. Layfield's motion to dismiss (dkt. 113), Mr. Layfield's supporting declaration (dkt. 114), this Court's order setting a preliminary hearing on the motion (dkt. 116, the "Hearing Order"), Mr. Layfield's supplemental proof of service (dkt. 123), his "notice of lodgment" of a flash drive (dkt. 124), the opposition of the Chapter 7 Trustee (dkt. 121), the opposition of Mr. Wakefield (dkt. 122), and Mr. Layfield's reply (dkt. 127).
Deficient Service
The Hearing Order points out that the proof of service is unsigned and does not list anyone (other than persons automatically served via the NEF system), even though it appears that all parties in interest must be served. See Rule 2002(a)(4) (Fed. R. Bankr. P.); Hearing Order (dkt. 116, p.2:3-8). Mr.
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Layfield's supplemental proof of service (dkt. 123) includes the typed "/s/" signature of his wife, but as the Chapter 7 Trustee points out (dkt. 121) Mr. Layfield is not eligible to use "/s/" signatures - only holographic signatures are acceptable under the local rules and procedures cited by the Trustee. The supplemental proof of service also still only serves persons who are automatically served via NEF, except for the debtor itself. In addition, as the Trustee points out (dkt. 121), there was never any notice of hearing.
In sum, any parties in interest who are not on NEF have had no proper service, and there has never been proper notice of the hearing or responsive deadline on Mr. Layfield's motion to have this case dismissed. The tentative ruling is that the motion must be denied due to lack of proper service or notice.
Lack of citation to evidence
As the Hearing Order points out, the motion to dismiss lacks any meaningful citation to evidence - instead Mr. Layfield simply refers massive quantities of documents in bulk: Mr. Layfield variously estimates 3,500 pages (dkt. 123, p.2:11) or "over 4,000 pages." Dkt. 113, p.10:1 (emphasis added).
This Court rejects Mr. Layfield's attempt to shift the burden to other parties and this Court to sort through those documents and understand how they are relevant. Dkt. 116, pp.2:9-3:20. The tentative ruling is that this lack of citation to evidence requires denial of Mr. Layfield's motion to dismiss. See In re Harmony Holdings, LLC, 393 B.R. 409, 416 (Bankr. S.C. 2008) (denying motion to dismiss case and stating, "it is not this Court's function to endlessly explore the record for facts that support the case of either party").
Lack of supporting evidence
Notwithstanding the foregoing, this Court has reviewed every single page of the papers filed by Mr. Layfield. That review appears to show not only a lack of evidence in support of Mr. Layfield's position, but evidence contrary to his arguments.
His main argument is that Mr. Wakefield allegedly lacked authority to file the bankruptcy petition for the debtor. Dkt. 113. But Mr. Wakefield's opposition and supporting declaration authenticate a copy of Form LLP-1 (dkt.122, Ex.A) showing himself as the authorized partner who formed the debtor, and his declaration explains why no other partners were ever added to the partnership. So far as this Court can determine from its extensive review of Mr. Layfield's papers, he has failed to provide any contrary evidence.
Instead Mr. Layfield's reply disputes whether Mr. Wakefield was
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"supposed to be in a position to ... file [the debtor's bankruptcy] petition ...." Dkt. 127, p.4:17-20 (emphasis added). That misses the point. Perhaps in hindsight Mr. Layfield wishes that the debtor had been structured differently, but the point is that the only documentary evidence before this Court is that Mr. Wakefield was in fact the only partner of the debtor, and was authorized to file the bankruptcy petition.
Mr. Layfield appears to argue in the alternative (dkt. 127, p.3:12-4:27) that
he was supposed to be one of the partners, (ii) because the debtor never adopted any partnership agreement (dkt. 122, p.3, para.7) it must be treated as a general partnership, and (iii) without evidence of his intent to give Mr. Wakefield the power to file a petition, there was no authority to do so. First, Mr. Layfield cites no authority for this interpretation of California law governing limited partnerships. Cf. dkt. 113, Ex. 221-24 (bulk excerpts of California law).
Second, supposing for the sake of discussion that there was an implied general partnership and a question about who had authority to act for it, Mr.
Layfield's own documents appear to contradict his assertions that (i) Mr. Wakefield was not authorized to file the debtor's bankruptcy petition or (ii) Mr. Layfield did not consent, and would not have consented, to the filing of the debtor's bankruptcy petition.
Authorization to file petition
Mr. Layfield's Exhibit 72 (dkt. 113) is a string of emails in which he expresses the intent not to be managing the debtor. To the contrary, Mr. Layfield states his initial understanding: "Todd [Wakefield] will be managing partner of maximum legal and Joe [Barrett] will be managing member of maximum legal CA." See Dkt. 113, Ex.72 (mis-labeled as Ex.13-22), at PDF p. 11. Later in that email chain, Mr. Barrett declines that responsibility but Mr. Wakefield offers to accept it, and that appears to be how the matter was left. Id., at PDF pp.11-14.
Although Mr. Wakefield himself later expressed some confusion about whether he needed Mr. Layfield's authorization (dkt. 113, Ex. 125, mis-labeled as Ex.13-22), that was in the rush of filing the case on an emergency basis, and wanting the authorization of one of the principals of a business does not establish that such authorization is required as a legal matter. In fact, Mr. Wakefield followed up by confirming that the attorneys who filed the bankruptcy petition had determined that Mr. Layfield's authorization was not required. The email chain does not include any response from Mr. Layfield contesting that assertion. In other words, if anything this email exchange reconfirms that Mr. Wakefield had
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authority to file the bankruptcy petition.
Mr. Layfield's consent to filing bankruptcy petition
In any event, Mr. Layfield's own Exhibit 125 includes his statement, when the debtor was urgently seeking to file its bankruptcy petition, that he would sign an authorization for it to do so. Dkt. 113, Ex. 125 (mis-labeled as Ex.13-22). Even after the fact, Mr. Layfield's Exhibit 172 includes an email dated July 19, 2017 at 6:51 a.m. in which he states, "Unfortunately, we were served with a couple of lawsuits that necessitated the filing of bankruptcy by ML (CA), LLP." (Emphasis added.) Dkt. 113, Ex. 172 (mis-labeled as Ex.1-7) at PDF pp.30-31. Therefore, both at the time and in hindsight, Mr. Layfield supported the filing of the bankruptcy petition. His protestations that the petition was unauthorized, and that he would have opposed it had he been asked, all ring hollow.
Third and finally, Mr. Layfield cites no authority regarding who may file a petition under federal bankruptcy law. Contrary to his assumption that his consent was required, there is authority that if a bankruptcy petition is filed "without the consent of all general partners" then it is "treated as an involuntary petition" and "[n]on-consenting general partners" must "act quickly to seek dismissal of the case or risk being estopped from pursuing such relief." 2 Collier on Bankruptcy, para. 301.04[2][a] (16th Ed.) (emphasis added). In this case the debtor's bankruptcy petition was filed on 7/12/17 (dkt. 1) and Mr. Layfield took over a year to file his motion to dismiss this case, on 9/20/18 (dkt. 113). The tentative ruling is that his objections are far too little, too late.
Other grounds for dismissal
Mr. Layfield appears to seek dismissal based on his general dislike of how he feels he has been treated by the Chapter 7 Trustee, Mr. Wakefield, and others. To the extent this Court understands Mr. Layfield's arguments, they are not sufficient "cause" for dismissal under 11 U.S.C. 1112.
Conclusion as to Mr. Layfield's motion to dismiss this case
The tentative ruling is to deny Mr. Layfield's motion to dismiss this case, for each of the alternative reasons set forth above. In addition, although some deficiencies such as the lack of proper service or notice could be cured, it does not appear that Mr. Layfield can propose any amendment to his motion papers that would overcome the other deficiencies. If he had persuasive evidence, surely that would have been included in his roughly 3,500 pages of documents. Therefore the tentative ruling is to deny leave to amend.
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Dismissal on other grounds
None of the foregoing should be interpreted to mean that this Court could not dismiss this case on other grounds, with or without conditions. The Chapter 7 Trustee anticipates (dkt. 121) filing a motion for dismissal after turning over the estate's assets (less a deduction of certain costs of administration) to the Chapter 11 Trustee in In re Layfield & Barrett, APC (Case No. 2:17-bk-19548- NB). Any such motion will be addressed when duly presented for decision.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Maximum Legal (California), LLP Represented By
Martin J Brill Daniel H Reiss Lindsey L Smith
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer
10:00 AM
Docket 0
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Maximum Legal (California), LLP Represented By
Martin J Brill Daniel H Reiss Lindsey L Smith
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer Steven Werth
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(2720 Homestead Rd, Suite 200, Park City UT 84098)
fr. 12/12/17, 02/13/18, 5/22/18, 08/07/18, 10/2/18
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 144
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Tentative Ruling for 8/7/18 (same as for 5/22/18, 2/13/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the trustee should be prepared to address the status of the trustee's investigation into the alleged pre-petition transfer.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Continue to 2/13/17 at 10:00 a.m. Appearances are not required on 12/12/17.
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Reasons for continuance
Insufficient Service
The proof of service filed in support of the motion does not reflect service on the debtor to the attention of the appropriate person(s), in accordance with Rules 4001 and 7004(b)(3) (incorporated by Rule 9014(b), Fed. R. Bankr. P.), and Local Bankruptcy Rule 4001-1(c)(1)(C)(i). Under Judge Bason's posted procedures (at www.cacb.uscourts.gov), he generally does not sua sponte require that specific individuals be named - service can be "Attn: Officer or Managing/General Agent" or a similar phrase - but in the circumstances of this case, in which there are disputes regarding who is or is not authorized to represent the debtor, Judge Bason will direct that service be (i) on the debtor at its address of record "Attn: Philip Layfield, Officer of Record" and also, in a separate envelope, (ii) on the debtor at its address of record "Attn: Any Officer Other Than Philip Layfield."
Chapter 11 Trustee's Request for Extension
This court has reviewed the chapter 11 trustee's reponse (dkt. 152) to the motion, and movant's reply (dkt. 159). Given that this case is an involuntary case and the trustee has not had the benefit of any bankruptcy schedules, any statement of financial affairs, or access to the debtor's principals, this court is not persuaded by movant's argument that the trustee has already had sufficient time to investigate the alleged pre-petition transfer. In addition, the trustee has provided adequate evidence that the equity cushion and the relatively short delay provide adequate protection.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
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Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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(2720 Homestead Rd, Suites 210 & 220, Park City UT 84098)
fr. 12/12/17, 02/13/18, 5/22/18, 08/07/18, 10/2/18
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 143
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Tentative Ruling for 8/7/18:
Please see the tentative ruling for calendar no. 37, on the 10:00 a.m. calendar, 8/7/18.
Tentative Ruling for 5/22/18:
Please see the tentative ruling for calendar no. 30, on the 10:00 a.m. calendar, 5/22/18.
Tentative Ruling for 2/13/18:
Please see the tentative ruling for calendar no. 26, on the 10:00 a.m. calendar, 2/13/18.
Tentative Ruling for 12/12/17:
Continue to 2/13/17 at 10:00 a.m. Appearances are not required on 12/12/17.
(Same reasons as for calendar no. 10, on the 10:00 a.m. calendar, 12/12/17.)
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Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
Docket 349
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
Docket 323
Tentative Ruling 10/24/18:
Appearances required.
General matters
Combined status conferences in the interrelated bankruptcy cases This Status Conference is being held in each of the three related
bankruptcy cases before this Court: (a) In re Layfield & Barrett, APC, Case No. 2:17-bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay- Invol."), (c) In re Maximum Legal (Cal.), LLP, Case No. 2:17-bk-18433-NB ("Max-CA").
Service of status conference order in L&B Case
The parties are reminded that this Court's order issued on 8/14/17 (L&B dkt. 28) provides that this Court may take various actions at any status conference in the L&B chapter 11 case without further notice. Although that order directed Debtor to serve a copy of that order on all parties in interest, it appears that Debtor never did so. The tentative ruling is to direct the Trustee in the Layfield & Barrett case to do so.
PDF procedures for Mr. Layfield
The parties should be prepared to address whether there is any reason why this Court should not adopt the procedures set forth in the tentative ruling requiring Mr. Layfield to file and serve documents in PDF format. See, e.g., In re Layfield (Case No. 2:18-bk-15829-NB), dkt. 88.
Other procedures for Mr. Layfield
This Court has reviewed every page of every paper filed by Mr. Layfield to date, including, for example, one motion that includes what he has estimated as either 3,500 pages or "over 4,000 pages" of exhibits. See Max-CA dkt. 113, p.10:1 (emphasis added), & dkt. 123, p.2:11. Most if not all of the documents accompanying Mr. Layfield's motions appear to be duplicative and irrelevant.
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More generally, Mr. Layfield has shown a pattern of ignoring the applicable rules for service, notice, and other procedures. His papers generally consist of stream-of-consciousness allegations, with few if any citations to any statute, rule, court decision, or evidence, except blanket references to massive quantities of documents in bulk.
This Court has pointed out these problems repeatedly, but Mr. Layfield has not taken any meaningful measures to correct the problems (e.g., he has filed supplemental proofs of service in some matters, but those are also deficient). Mr. Layfield's massive sets of documents, lack of adherence to procedures, and lack of citations to law or evidence all place an unfair burden on parties in interest, as well as this Court. See, e.g., L&B dkt. 351 (order re motion to terminate appointment of trustee); L&B dkt. 355 (order denying "protocol" motion); L&B Adv. P. 2:18-ap-01050-NB (the "Utah Condo A/P") dkt. 29 (order re motion to set aside default); Lay-Invol. dkt. 50 (order re 362(k) motion v.
LeBlanc); Lay-Invol. dkt. 51 (order re 362(k) motion v. Jansheski); Lay-Invol. dkt. 56 (order re motion to dismiss involuntary case); Lay-Invol. dkt. 58 (order re motion for protective order); Lay-Invol. dkt. 64 (order re "special appearance"); Max-CA dkt. 116, p.1:19-4:5 (order re motion to dismiss case).
In addition, Mr. Layfield's motions appear to lack merit. Opposing parties and this Court have explained why, as set forth in the tentative rulings for all of the matters that are on for hearing today (10/24/18).
All of the foregoing defects suggests that Mr. Layfield's papers have been filed for improper purposes, such as to harass the parties, delay these proceedings, or create a false image that he is diligently attempting to pursue his (former) clients' interests. See, e.g., Max-CA dkt. 116 (order on motion to dismiss case). The tentative ruling is that this Court will issue an order to show cause why Mr. Layfield should not be subject to a "pre-filing order." In addition, this Court may consider other remedies, either on its own motion or on a motion of a party in interest, under Rule 9011, Section 105, this Court's inherent powers, or any other applicable statute, rule, or doctrine. See generally 11 U.S.C. 105(a); Rule 9011 (Fed. R. Bankr. P.); In re Dyer, 322 F.3d 1178, 1196 (9th Cir. 2003);
Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007); De Long v. Hennessey, et al., 912 F.2d 1144 (9th Cir. 1990); In re Stanwyck, 450 B.R. 181, 200-08 (Bankr. C.D. Cal. 2011).
Matters on Calendar Today (10/24/18)
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Mr. Layfield's motion to dismiss Max-CA case (Max-CA dkt. 113, 114). Deny, without leave to amend, for the reasons stated in the tentative ruling for calendar no. 1 (10/24/18 at 10:00 a.m.).
Motion to terminate appointment of L&B trustee (L&B dkt. 349, 350). Deny for the reasons set forth in this Court's order setting this hearing (dkt. 351). The parties should be prepared to address whether leave to amend should be granted.
Motion to set aside default (Pachulski v. Layfield V, LLC et al.) (L&B, Adv. No. 18-ap-01050-NB, dkt. 27, 28). Deny, without leave to amend, for the reasons set forth in this Court's order setting this hearing (adv. dkt. 29) and the plaintiff/trustee's opposition papers (adv. dkt. 33, 34).
Motions for relief from stay (L&B dkt. 143, 144) (Utah Condos); and Status Conference re related fraudulent transfer action (Utah Condo A/P) (L&B, Adv. No. 18-ap-01050-NB). The parties should be prepared to address the status of the sale of the condos, and any other issues appropriate to address at this status conference.
Motion for protective order etc. (Lay-Invol. dkt. 54, 55). Deny, without leave to amend, for the reasons set forth in this Court's order setting this hearing (adv. dkt. 58) and the opposition of Wellgen Standard, LLC ("Wellgen") (adv. dkt. 81).
Motion to dismiss involuntary case (Lay-Invol. dkt. 48). Deny, without leave to amend, for the reasons set forth in this Court's order setting this hearing (adv. dkt. 56), Wellgen's opposition (adv. dkt. 73, pp.4:25-12:15), the joinder (dkt. 82, 83) of Richard M. Pachulski, Chapter 11 Trustee of Layfield & Barrett, APC (Case No. 2:17-bk-19548-NB), and Wellgen's Sur-Reply (dkt. 89, Ex.1). Although Mr. Layfield's reply (dkt. 84) asserts that he has grounds to dispute each claim, those grounds are insufficient to rebut the prima facie showing by the petitioners that they hold three claims in an aggregate amount of at least
$15,775, and that this is not subject to "bona fide" dispute. 11 U.S.C. 104, 303(b)(2) (emphasis added).
Motion under 11 U.S.C. 362(k) - Michel LeBlanc (Lay-Invol. dkt. 41). Deny, due to lack of proper service (see Order, dkt. 50, and proof of service, dkt. 79) (with impermissible "/s/" signature), and for the reasons stated in the Wellgen's opposition (dkt. 68). In addition, although Mr. Layfield asserts that the subject property is exempt, it appears from the docket that he has not filed any bankruptcy Schedule C claiming any property as exempt; and, were he to do so,
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any party in interest may have objections.
Motion under 11 U.S.C. 362(k) - John Jansheki (dkt. 42). Deny. First, due to lack of proper service. See Order, dkt. 51 (pointing out lack of signature); proof of service (dkt. 77) (with impermissible "/s/" signature); Jansheki Opp. (dkt. 72) (point out service on non-bankruptcy attorneys is inadequate); In re Villar, 317
B.R. 88 (9th Cir. BAP 2004) (same). Second, for the reasons stated in the Wellgen's opposition (dkt. 69) and Mr. Jansheki (dkt. 72). Although Mr. Layfield's reply (dkt. 85) asserts that the subject property is exempt, it appears from the docket that he has not filed any bankruptcy Schedule C claiming any property as exempt; and, were he to do so, any party in interest may have objections.
(i) "Special appearance" for the limited purpose of objecting to the employment of Jeffrey Golden's Law Firm and the appointment of an interim trustee (dkt. 37). Overrule Mr. Layfield's objection, in his "special appearance" (dkt. 37), to the Chapter 7 Trustee's application (dkt. 30) to employ Mr. Golden's law firm, and overrule any objection or request for reconsideration of the appointment of the Trustee, because Mr. Layfield's papers are procedurally deficient (as explained in section "(3)" of the tentative ruling attached to this Court' order setting this hearing, dkt. 64, Exhibit), and also for the reasons stated in Wellgen's response (dkt. 46).
Note: This Court is not persuaded that any waiver by the Trustee of conflicts would be effective to override any non-compliance with 11 U.S.C. 327. But there is no such non-compliance on the present record. To the contrary, the statute specifically provides that an attorney for a creditor may be employed by the Trustee for limited purposes. See 11 U.S.C. 327(a)&(c); In re Fondiller, 15
B.R. 890 (9th Cir. BAP 1981). But in the event that any future conflict or potential conflict were to develop, that must be disclosed and the Trustee would need to request re-authorization or termination of the employment.
Proposed orders: This Court will issue a "Memorialization of Tentative Rulings" with a copy of these tentative rulings attached, so that they are on the docket. Within 7 days thereafter, the prevailing parties are directed to lodge proposed orders via LOU, adopting this Court's oral rulings at the hearing, based on the tentative rulings, except as modified by this Court's findings of fact and conclusions of law made on the record at the hearing (as permitted by Rule 52(a)
(1) (incorporated by Rules 7052 and 9014(c), Fed. R. Bankr. P.). See LBR 9021-1(b)(1)(B). For purposes of this paragraph, Wellgen is considered the
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prevailing party on the LeBlanc matter (in the absence of any response from Mr. LeBlanc).
Deadlines/dates
Plan/Disclosure Statement*: TBD
Continued status conference: Vacate the L&B status conference presently set for 11/6/18 at 1:00 p.m. and instead hold combined status conferences in all three cases and the Utah Condo A/P on 12/4/18 at 2:00 p.m., no written status reports required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Appearances required. To the extent that this Court has tentative rulings, they are set forth below. The parties should be prepared to address the following issues:
Status conferences in the interrelated bankruptcy cases. Various bankruptcy cases before this Court are interrelated: (a) In re Layfield & Barrett, APC, Case No. 2:17-bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay-Invol."), (c) In re Maximum Legal (Cal.), LLP, Case No. 2:17-bk-18433-NB ("Max-CA"). As a matter of calendar management, this Court will hold general status conferences in all of those cases concurrent with the status conferences on specific matters that have been self-calendared or specially set for today (9/18/18 at 2:00 p.m.).
L&B case: Status Conference on Mr. Layfield's Ex Parte Motion to stay proceedings etc. (L&B dkt. 325) (the "Ex Parte Motion"). This Court issued an
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order (L&B dkt. 325) denying Mr. Layfield's Ex Parte Motion to the extent (if any) that it sought immediate relief (e.g., excusing Mr. Layfiled or others from the bar date; staying all matters involving him or others; converting the L&B case to chapter 7; etc.). This Court also set this status conference on Mr. Layfield's Ex Parte Motion. Wellgen filed a response (L&B dkt. 332).
The tentative ruling is that this Court should not take any action at this time. Rather, Mr. Layfield must follow the applicable statutes and rules and file separate motions and/or adversary proceedings for each type of relief that he seeks in his Ex Parte Motion, instead of combining multiple requests in a single document that does not include points and authorities, includes numerous assertions that are not supported by admissible evidence, and does not otherwise comply with the applicable statutes and rules.
For example, Mr. Layfield would need to file and serve a motion to convert the L&B case to chapter 7, and a separate motion to consolidate the L&B case with the Max-CA case. Each of those documents would need to be supported by appropriate points and authorities, declarations, etc.
Although Mr. Layfield requests that this Court establish briefing schedules on the foregoing and other matters, that appears to be premature or unnecessary. The Local Bankruptcy Rules ("LBR") and the self-calendaring procedures (available at www.cacb.uscourts.gov) establish briefing and hearing schedules for typical motions, and there is no showing that special procedures are necessary or appropriate at this stage.
Mr. Layfield (and all other parties in interest) are reminded that they must comply with the Posted Procedures of Judge Bason (available at www.cacb.uscourts.gov). In addition, they may wish to familiarize themselves with this Court's earlier rulings in these various proceedings. See, e.g., L&B dkt. 288 (order denying Mr. Barrett's motion to stay proceedings).
Nothing in the preceding paragraphs should be interpreted as expressing any opinion about whether Mr. Layfield does or does not have standing or have grounds to seek any of the relief he mentions. For example, both standing and grounds for relief are unclear with respect to Mr. Layfield's request to establish that "all unpaid client claims and unpaid liens relating to client claims must be given priority over any secured creditors or Trustee compensation."
First, this Court is not certain what Mr. Layfield means. Second, it is unclear whether Mr. Layfield has standing to seek a determination of priority of L&B's client's claims over secured creditors' claims or any administrative
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expenses - presumably that is an issue between those parties. Third, assuming for purposes of discussion that Mr. Layfield is seeking some sort of declaratory judgment that he has an attorney lien with priority over the lien held by Welgen Standard, LLC (as successor to Advocate Capital, Inc.) ("Wellgen"), it is unclear whether he has any standing to assert an attorney lien (which might belong to L&B rather than Mr. Layfield) or any grounds for such relief (e.g., does he assert an attorney lien by operation of nonbankruptcy law, or contract, or on some other ground?). Fourth, it would be premature to set a briefing schedules before he has filed any adversary proceeding and motion(s) or claim objections or whatever other papers may be necessary or appropriate, complete with points and authorities, supported by admissible evidence.
In sum, the tentative ruling to DENY Mr. Layfield's Ex Parte Motion, without prejudice to any properly presented requests for the relief that he appears to seek. The tentative ruling is to direct Wellgen's counsel to prepare an order denying Mr. Layfield's Ex Parte Motion for the reasons stated in this tentative ruling (as they may be augmented or modified at the hearing).
Lay-Invol. case: status conference on Mr. Layfield's "Special Appearance For The Limited Purpose Of Objecting To The Employment Of Jeffrey Golden's Law Firm And The Appointment Of An Interim Trustee" (Lay-Invol. dkt. 37, the "Special Appearance"). Mr. Layfield appears to be attempting to combine at least three separate matters in a single document: (a) limiting his appearance in some way (although it is unclear whether he can limit his appearance and also request the other relief he seeks); (b) challenging the appointment of an interim chapter 7 trustee (the "Interim Trustee") and/or objecting to the selection of Mr. Avery as such Interim Trustee (see Lay-Invol. dkt. 13, order) (it is unclear what relief Mr. Layfield actually seeks); and (c) objecting to the pending application (Lay-Invol. dkt. 30) by the Interim Trustee to employ Weiland Golden Goodrich LLP (Mr. Golden's law firm) (the "Weiland Golden" firm). As with other matters, he has not included points and authorities, he makes numerous allegations that are not supported by admissible evidence, and he has not followed proper procedures.
Due to these deficiencies the tentative ruling is to deny Mr. Layfield's request to set these matters (and others) for hearing on October 23, 24, or 25. See Lay-Invol. dkt. 37, p.3. In addition, the tentative ruling is to deny his request for a stay of various proceedings pending resolution of these matters, for the same reasons why this Court denied his request for a similar stay in the L&B
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case. See L&B dkt. 325.
Nevertheless, the tentative ruling is to hold a status conference on Mr. Layfield's Special Appearance to address the following issues. To the extent he is attempting to object (a) to the appointment of an Interim Trustee generally or Mr. Avery as such Interim Trustee in particular, or (b) to the Interim Trustee's application to employ the Weiland Golden firm, the parties should be prepared to address:
interim trustee: whether the objection to the appointment of any Interim Trustee is intended to be a request for reconsideration under Rule 9023 or 9024 (Fed. R. Bankr. P.) of this Court's order appointing Mr. Avery; and whether Mr. Layfield can meet the standards under those rules (or any other applicable rules or decisions), including whether Mr. Layfield was properly served and whether he has grounds to assert that there is not cause for appointment of an interim trustee at all (if that is his objection), or grounds to object to Mr. Avery as the Interim Trustee who was selected (if that is his objection); and
employment of law firm: whether this Court should, sua sponte, address the alleged conflict of interest in the Weiland Golden firm representing both the Chapter 7 Trustee (on matters not involving Wellgen) and Wellgen (see 11 U.S.C. 327(c)), or the alleged wrongdoing by that law firm (which it denies, see Lay-Invol. dkt. 37-5, Ex.I, Part V, at PDF pp. 59 et seq.), including whether this Court should set those issues for hearing; whether this Court should set a deadline for Mr. Layfield to file and serve points and authorities and any supporting evidence; and whether the United States Trustee should be requested to participate.
The tentative rulings on these issues are that, although Mr. Layfield's Special Appearance is inadequate to place the foregoing matters at issue, nevertheless the administration of these cases might be impeded unless this Court establishes a briefing schedule to obtain greater certainty, in view of Mr. Layfield's arguments, about who does or does not have authority to act for the bankruptcy estates. The tentative ruling is to give Mr. Layfield a deadline of 9/25/18 to file and serve his objections; a deadline of 10/2/18 for any response by the Interim Trustee or the Weiland Golden firm; a deadline of 10/9/18 for any reply; and a hearing date of 10/16/18 at 2:00 p.m., and to invite the U.S. Trustee to file papers by the same deadlines and appear at the hearing. The tentative
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ruling is to direct the Weiland Golden firm to prepare a proposed order memorializing those deadlines (with an attached copy of this tentative ruling, thereby adopting it as this Court's final ruling regarding those deadlines and the reasons for setting them).
L&B case, Pachulski v. Layfield V, LLC and Philip Layfield (Adv. No. 2:18- ap-1050-NB) ("CondoAdv."), suggestion of bankruptcy (CondoAdv. dkt. 22), and related motions for relief from automatic stay (L&B dkt. 143, 144) (the "WF R/S Motions"). Mr. Layfield points out that the order granting the plaintiff's motion for a default judgment (CondoAdv. dkt. 18) and the judgment (CondoAdv. dkt. 17), were entered on 5/25/18, which is a few days after the involuntary bankruptcy petition was filed against him (LayInvol. dkt.1) on 5/21/18. This Court notes that the WF R/S Motions are scheduled for a continued hearing on 10/2/18 at 1:00 p.m.
The parties should be prepared to address how this adversary proceeding should be prosecuted going forward, and whether they are seeking any procedural orders or other relief from this Court to aid in the diligent prosecution of this matter. The tentative ruling is, as a matter of sua sponte calendar management, to continue the WF R/S Motions to 10/16/18 at 2:00 p.m., to be heard concurrent with the other matters in these interrelated cases. The tentative ruling is to direct counsel for Wellgen to file a notice of that continued hearing and serve it no later than 9/21/18 via U.S. mail on Wells Fargo Bank, N.A. as well as the debtors, trustees, and other parties asserting any interest in the subject condominimum properties in the L&B, Lay-Invol., and Max-CA cases.
Mr. Layfield's future filings. This Court has reviewed all of the papers filed by Mr. Layfield in the three interrelated cases and the adversary proceedings in those cases. Those papers are disorganized and exceptionally lengthy.
This Court recognizes that Mr. Layfield may have been impeded by his recent incarceration and other changes in his life, but any litigant, particularly an attorney, must provide coherent arguments, points and authorities as needed, and admissible evidence on relevant factual issues. In future, this Court may strike papers that do not meet these minimum standards and comply with the applicable rules.
Mr. Layfield's requests for electronic service. This Court is confused by Mr.
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Layfield's requests (L&B dkt. 333, p.2:21-23; Lay. dkt. 37, p.2) that he be granted some sort of special electronic ability to file or be served. Although Mr. Layfield claims that he is "unable to receive ECF notifcations," he does not explain why that is so.
Attorneys can sign up for electronic filing and notices ("CM/ECF" and "NEF"). Even non-attorneys can gain access to the docket ("PACER"). All parties in interest can receive email service by filing a request for special notice and consent to such service (and, for debtors, there is the additional option of signing up for electronic notices via this Court's "DeBN" program - instructions are available at www.cacb.uscourts.gov). See Rule 5(b)(2)(E)&(F) (Fed. R. Civ. P.) (incorporated by Rules 7005 & 9014(b), Fed. R. Bankr. P.).
To the extent that Mr. Layfield is requesting any relief that is not already available to him, this request is DENIED.
L&B Case: Mr. Layfield's purported transfers of various claims to himself (dkt. 335-341) (the "Self-Transfers"). The parties should be prepared to address the Self-Transfers.
Max-CA case. This Court notes that Mr. Barrett has filed a motion for relief from the automatic stay (Max-CA dkt. 108, the "Barrett R/S Motion"), set for hearing on 10/2/18 at 10:00 a.m., to assert counterclaims in one of the adversary proceedings in the L&B Case (Wellgen Standard, LLC v. Max. Legal (Cal.) LLP, Adv. No. 2:17-ap-01503-NB). Although this Court has considered sua sponte rescheduling the Barrett R/S Motion (to be heard concurrent with the 10/16/18 hearings tentatively set by this tentative ruling), it appears more efficient to leave the existing hearing as is.
Mr. Layfield's address for service. This Court notes that Mr. Layfield has used variations of an address in Washington, D.C., as well as other addresses, in various documents filed recently. These multiple addresses seem prone to confusing and prejudicing parties in interest, including Mr. Layfield himself, because an address filed in one case or proceeding might or might not be used (or even known to parties) in a different case or proceeding, and because Mr. Layfield has asserted in the past that he has not been properly served.
Accordingly, the tentative ruling is to issue an order directing Mr. Layfield,
no later than 9/24/18, (a) to file in each of the three bankruptcy cases (L&B,
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Lay-Invol., and Max-CA) and in each adversary proceeding in which he has filed any papers or is named in any capacity, a notice designating a single address for
U.S. mail or overnight delivery to be used in all of these cases and related proceedings, as well as a single email address, and a statement about whether he agrees to accept service via email, and (b) to serve that notice via U.S. mail on all parties in interest (the entire creditor matrix in all cases and adversary proceedings). If Mr. Layfield fails to do so, the tentative ruling is that this Court will interpret his failure to respond as an attempt to maintain a factual ambiguity about which address is appropriate, and this Court may issue an order selecting the address that appears to be the most recent and, possibly, establishing evidentiary presumptions about service or other matters. The tentative ruling is to direct Wellgen to prepare a proposed order reflecting the foregoing, and to attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling on the procedure for Mr. Layfield's address to be determined.
Joint Status Conference: In addition to the above, due to the interrelated nature of the L&B, Lay-Invol., and Max-CA cases, this Court finds it appropriate to conduct a joint status conference in each of these cases (2:17-bk-19548-NB; 2:18-bk-15829-NB; 2:17-bk-18433-NB) on 10/16/18 at 2:00 pm. This joint status conference will be used to address any concerns this Court or the parties address at this 9/18/18 hearing, and any other pending issues that may arise.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay
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James KT Hunter
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Adv#: 2:18-01050 Pachulski v. Layfield V, LLC, a Delaware limited liability comp
Docket 27
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Layfield V, LLC, a Delaware limited Pro Se Philip Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski Represented By Steven J Kahn Malhar S Pagay
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Adv#: 2:18-01050 Pachulski v. Layfield V, LLC, a Delaware limited liability comp
Docket 1
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Layfield & Barrett matter (calendar no. 1, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 5/1/18:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's unilateral status report (dkt. 11). Appearances are not required on 5/1/18.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines: This adversary proceeding has been pending since 2/22/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A Status Report: 6/12/18.
Continued status conference: 6/26/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
10:00 AM
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Layfield V, LLC, a Delaware limited Pro Se Philip Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski Represented By Steven J Kahn
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
Docket 54
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
Docket 48
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
Docket 41
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
stay and assessing sanctions including actual and punitive damages
Docket 42
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
Docket 37
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
Docket 1
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Layfield & Barrett matter (calendar no. 1, 9/18/18 at 2:00 p.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Adv#: 2:17-01503 Wellgen Standard LLC v. Maximum Legal (California), LLP et al
and (2) Turnover of Property of the Estate Pursuant to 11 U.S.C. § 542 fr. 12/19/17, 03/06/18, 3/20/18, 5/1/18, 6/26/18, 7/17/18
Docket 1
Tentative Ruling for 10/24/18:
Continue all matters in this adversary proceeding sine die, except that (1) any settlement motion (see adv. dkt. 68) may be self-calendared on regular notice on any hearing date in the Layfield-Related cases and (2) this status conference will be continued to the same date as the next Status Conference in In re Layfield & Barrett, APC (Case No. 2:17-bk-19548-NB). Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Appearances Required. The parties should be prepared to discuss when this Court should set relevant discovery dates and other deadlines.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by
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consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
This court anticipates posting a tentative ruling at a later time. [NOTE: no tentative ruling was posted; instead this Court issued its
memorandum decision denying Wellgen's motion to dismiss (adv. dkt. 50).]
Tentative Ruling for 5/1/18:
Appearances required.
Motion to Dismiss (dkt. 24). At the hearing on 3/20/18, this Court delivered its oral tentative ruling to deny the motion but, due to the Court's heavy calendar that day, could not afford the parties an opportunity to present oral arguments in response. This Court lifted the stay of discovery and continued the matter to this date to allow the parties an opportunity to attempt a consensual resolution, or present arguments for or against the tentative ruling.
Deadlines. If this Court sticks with its tentative ruling not to dismiss the complaint, the parties should be prepared to discuss relevant discovery dates and other deadlines.
This adversary proceeding has been pending since 10/17/17. Discovery cutoff (for completion of discovery): TBD Expert(s) - deadline for reports: TBD
Expert(s) - discovery cutoff (if different from above): TBD Dispositive motions to be heard no later than: TBD
Joint Status Report: 6/12/18
Continued status conference: 6/26/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required.
Motion to Dismiss. At the hearing on 3/6/18, this court continued the matter for the parties to review relevant authority on the "unfinished business doctrine" and consider the implications of that authority on this proceeding. This Court has reviewed the parties' status reports (dkt. 39, 41), which effectively are briefs, and the parties are directed to address (a) whether further briefing or discovery is needed, either as to the Teitelbaum Case or any other matter, (b) whether the range of possible outcomes could include any in which the underlying clients (or any other parties) could be prejudiced (e.g., if any party presently before this Court is denied a recovery in this proceeding, would that party have any ability to seek recovery from the underlying client on a different theory?) and, if so, whether such persons need to be joined in this proceeding, and (c) whether to bifurcate the Teitelbaum Case from other matters and render a decision as to the former after oral argument and/or set deadlines for discovery or other procedures (see, e.g., the list of deadlines set forth in paragraph "(3)" of this Court's tentative ruling for 12/19/17, reproduced below).
Continued hearing/status conference: 5/29/18 at 1:00 p.m. Brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required. This Court has reviewed the parties' status reports (adv. dkt. 28, 29) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. The issues raised in paragraph "(1)" of this Court's tentative ruling for 12/19/17 (reproduced below) appear to have been addressed (see adv. dkt. 28, 29) or waived/forfeited by parties who have not expressly addressed them.
Mediation. The parties are directed to report on the status of the 2/27/18 mediation. If the mediation was not successful, the parties should be prepared to argue the merits of the motion to dismiss filed by Advocate Capital, Inc. (adv. dkt. 24, the "MTD") and related papers (e.g., adv. dkt. 30, 34). To the extent that the foregoing does not resolve the parties' litigation, this Court anticipates setting deadlines for discovery and possibly other matters (see paragraph "(3)" of this Court's tentative ruling for 12/19/17, reproduced below).
Continued status conference: 5/29/18 at 1:00 p.m. Brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 9) and the other filed documents and records in this adversary proceeding. The tentative ruling is to excuse the parties from any Rule 26 compliance at this time (Fed. R. Civ. P. 26, incoroprated by Fed. R. Bankr. P. 7026), as requested
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by certain of the parties. In addition, the tentative ruling is as follows (the parties need not repeat their responses in the status report unless there is some change to those responses).
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue,
(b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
The tentative ruling is to set a deadline of 1/5/18 for the parties to agree on a mediator whose schedule is consistent with the needs of this matter and lodge mediation order(s) (if the parties are unable to agree on a single order they may lodge competing orders and Judge Bason will decide among them or issue his own, although it should be possible for the parties to agree on a mediator).
Deadlines: This adversary proceeding has been pending since 10/17/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/14/18 Expert(s) - deadline for reports: 5/18/18
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Expert(s) - discovery cutoff (if different from above): 5/25/18 Dispositive motions to be heard no later than: 7/10/18
Joint Status Report: 3/27/18
Continued status conference: 4/10/18 at 2:00 p.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
Richard Pachulski Represented By James KT Hunter
10:00 AM
Plaintiff(s):
Wellgen Standard LLC Represented By Faye C Rasch
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
8:30 AM
Docket 52
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Warren Obrian Williams Represented By Matthew D. Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bianca Flora Avenia Represented By Madhu Kalra
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 19
Debtor(s):
Raul Ochoa Represented By
Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 154
Appearances required. There is no tentative ruling. At the hearing this Court anticipates addressing with the parties some questions about the motion (dkt. 154) to vacate the order avoiding lien.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robert Lee Montgomery Represented By Brad Weil
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 27
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alcee Blackwell Represented By Devin Sawdayi
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 19
Continue to 11/29/18 at 8:30 a.m. to address the following issues. Appearances are not required on 10/25/18.
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and until this Court expressly finds: "Counsel has provided a
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cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nicole Leesuvat-Anderson Represented By Andrew Moher
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 127
Debtor(s):
James Kevin King Represented By Steven L Bryson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 06/07/18, 6/28/18, 8/2/18, 9/27/18
Docket 63
Tentative Ruling for 10/25/18 (same as for 9/27/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address whether the outstanding escrow accounting issues have been resolved (as the parties hoped at the time of the 8/2/18 and 9/27/18 hearings).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/2/18 (same as for 6/7/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At a hearing on 5/8/18 on Wells Fargo's motion for relief from stay, Wells Fargo withdrew its motion and the parties stated that they believed they could resolve the outstanding escrow issues in the context of this motion. On 7/30/18, Wells Fargo filed a Notice of Withdrawal of Notice of Mortgage Payment Change (Claim 4) (dkt. 89) ("Withdrawal Notice"). There is no
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tentative ruling, but the parties should be prepared to address whether the Withdrawal Notice moots the debtor's pending objection.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
COPY OF TENATIVE RULINGS ON RELATED MOTION (dkt. 58) FOR RELIEF FROM AUTOMATIC STAY
Tentative Ruling for 5/8/18:
Appearances required.
At the hearing on 3/20/18, this Court continued the matter to this date and directed (1) debtor to commence making higher payments to Movant in the amount of $4,079.99 ($3,698.51 P&I + $381.48 escrow); and (2) set deadlines for (a) Movant to file a supplemental declaration regarding recalculation of the appropriate monthly escrow fund payment, and (b) debtor to file a response.
This Court has reviewed Movant's supplemental declaration (dkt. 68) and debtor's response (dkt. 72). The parties should be prepared to address whether they have reached any resolution regarding debtor's contention that Movant has not taken into account any credits received from hazard insurance and county taxes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/20/18:
Grant in part, deny in part, and continue to 4/10/17 at 10:00 a.m., all as set forth below. Appearances required.
Background
The parties appear to agree that the debtor has made monthly payments of $3,698.51 (the normal amortizing principal and interest payments). Those payments were due on the first day of each month, and generally were paid a few days later. See dkt. 8, Ex.5 (movant's spreadsheet) and dkt. 61, Ex.A, & dkt. 62) (debtor's copies of cashier checks). The motion lists some late charges, attorney fees, and other items (dkt. 58, p.7, para.8), but those do not appear to have been included in the movant's spreadsheet (dkt. 58, Ex.5, at PDF pp.30-33), perhaps because the listed amounts are for prepetition periods. In any event, the core of the parties' disagreement appears to involve an escrow impound account to pay real estate taxes and property insurance premiums.
The debtor's assertions of "improper" escrow impounds are unpersuasive The debtor's declaration (dkt. 61, Tribelsky Decl., para.9, at PDF
p.7:24-28) asserts that the impound is "improper" and that the debtor has "struggled with [movant] Wells Fargo to have them end these impounds." The debtor also declares (dkt. 61, at PDF p.7:16-22) that there was an "improper increase" in monthly payments starting on March 1, 2016, which he believes was due to an escrow impound for taxes and insurance.
The debtor fails to explain why there is anything "improper" about requiring him to pay into an escrow for real estate taxes and insurance. The loan documents (dkt. 8, Ex.1, para.3, pp.4-5) require the debtor to make escrow payments for taxes and insurance premiums on the same date at the payments of principal and interest.
It is true that the movant apparently had not required escrow payments for some unspecified period prior to March 1, 2016. See Notice of Mortgage Payment Change (Official Form 410S1) (the "Change Notice"), filed 1/19/16 on the Claims Register, at PDF pp.5-6 (requiring monthly payments of
$351.96 commencing March 1, 2016). But if the debtor is asserting some sort of waiver that argument is unpersuasive. The Deed of Trust provides (dkt. 58, Ex.1, para.3, pp.4-5) that although the movant may waive the escrow requirement, the movant "may revoke the waiver as to any or all Escrow
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Items at any time" and then the debtor "shall pay" all escrow amounts.
The debtor apparently just ignored his obligation to pay escrow impound amounts. Instead he has presented evidence (dkt. 61, Ex.B, at PDF pp.38 et seq.) that he paid taxes directly to the tax authorities and insurance premiums directly to the insurers.
It appears that the movant must have credited the debtor's direct payments of taxes and insurance, because its Change Notice filed on 10/18/16 lists a low estimated "Starting balance" of $861.27 as of December 2016 (although that apparently assumes that the debtor would start making his required escrow payments). In any event, the movant''s Change Notice is prima facie evidence of the validity of this underlying calculation in support of its claim, and the debtor has not established that there is anything wrong with the movant's accounting included in its Change Notice filed on 10/18/16.
Similarly, by the time of the next Change Notice it appears that the movant must have once again credited the debtor's direct payments of taxes and insurance because, the escrow account projections ("Part 3") project a required "Starting balance" for March 2018 of only $762.96 (although, again, this appears to assume that the debtor will have made certain payments into the escrow account by the start of March 2018). In any event, the debtor has not shown that there is anything wrong with this supporting underlying documentation of the movant's claim.
Despite the deficiencies in the debtor's arguments and evidence, it appears that the motion itself fails to account for the debtor's direct payments of real estate taxes and insurance
The motion asserts (dkt. 58, p.9, para.12.c.) that the debtor was behind three payments of $4,053.45, for a total of $12,160.35, less a suspense account balance of $1,166.12, for a total of $10,994.23 as of approximately 12/12/18 (when the declaration in support of the motion was signed). But unlike the Change Notices the motion does not appear to give the debtor credit for direct payments of real estate taxes and insurance.
Based on the spreadsheet attached to the motion as Exhibit 5 (dkt. 58, at PDF pp.30-33), the alleged shortfall of $10,994.23 appears to be the cumulative sum of all the shortfalls between the $3,698.51 that the debtor was paying each month (the normal amortizing principal and interest payments) and the higher monthly amounts that he should have been paying in order to fund the escrow account. There are no entries in the spreadsheet
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that appear to reflect the debtor's direct payments of taxes and insurance.
Nor is it possible to rely on the latest Change Notice to determine precisely what the debtor owes. At first glance that Change Notice would appear to have current information because it was filed on 3/5/18, but it provides only a projected shortfall of $762.96 in the escrow account as of March 2018 (3/5/18 Charge Notice at PDF p.6, Part 3, end of first line). That projection probably is too low, because it appears to assume that part of the debtor's monthly payment is credited to the escrow account in January of 2018, and that the debtor will make some very substantial payments in February and March of 2018, and that the real estate taxes that are due in March of 2018 will be paid out of those escrow payments (see id., Part 4, 2d and 5th columns, rows for January, February, and March, including credits of
$1,281.90, $9,810.75, and $354.94, and debit of $1,612.38).
The bottom line is that although the movant has not established precisely what the debtor owes, it has established cause for some sort of relief from the automatic stay - namely, there is "cause" within the meaning of 11 U.S.C. 362(d)(1) in that the debtor has failed for many months to comply with his obligations to fund the escrow account, which exposes the movant to the risk that it will have to bear the cost if the debtor fails to pay real estate taxes or insurance (especially if the property were to be damaged or completely burn down). The required adequate protection is for the debtor to cure the deficiency in the escrow account over a reasonable period of time.
The latest Change Notice (filed 3/5/18) can be used as a starting point. It requires that the debtor pay $381.48 per month into the escrow account, in addition to his regular monthly payments of $3,698.51 on account of principal and interest, for total monthly payments of $4,079.99. The escrow payments may have to be adjusted (as noted above, the Change Notice appears to assume that the debtor will have made some very substantial payments by the start of March 2018), but this Court can set a schedule for such adjustment (see below).
Conclusion
The tentative ruling is to set a deadline of 4/1/18 for the debtor (a) to file evidence that he has paid the March 2018 real estate tax payment directly to the taxing authority and (b) to commence making monthly payments of
$381.48 into the escrow account, in addition to his regular monthly payments of $3,698.51 on account of principal and interest, for total monthly payments
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of $4,079.99.
In addition, the tentative ruling is to set a deadline of 4/1/18 for the movant to file a supplemental declaration showing a calculation of the required escrow balance as of 5/1/18, the required monthly payments for the debtor to cure the deficiency in that escrow balance, and the resulting new total monthly payment that the debtor will have to pay on 5/1/18 and each month thereafter.
Finally, the tentative ruling is to set a continued hearing at the date and time set forth at the start of this tentative ruling, so that the parties and this Court can address what to do if the debtor disputes the movant's calculations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Boaz Tribelsky Represented By Michael F Chekian
Movant(s):
Boaz Tribelsky Represented By Michael F Chekian Michael F Chekian Michael F Chekian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 33
- NONE LISTED -
Debtor(s):
Mae E. Wood Represented By
James D. Hornbuckle
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 26
- NONE LISTED -
Debtor(s):
Mae E. Wood Represented By
James D. Hornbuckle
Movant(s):
Mae E. Wood Represented By
James D. Hornbuckle
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Jerson Estrada; Request Claim to be Disallowed fr. 06/28/18, 08/02/18, 08/30/18
Docket 24
Tentative Ruling for 10/25/18:
Continue to 12/20/18 at 8:30 a.m. because this matter is being resolved in the nonbankrupty action in Jerson Estrada v. Airport General Auto Repair, Inc. (Superior Court, County of L.A., BC643391). See Order (dkt. 44) (granting relief from automatic stay for that action). Appearances are not required on 10/25/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/30/18:
Appearances required. There is no tentative ruling but the parties should be prepared to address the following issues.
This Court has reviewed the claim objection (dkt. 24), claimant's opposition (dkt. 35), and debtor's reply (dkt. 37). The claimant asserts (dkt. 35, p.4, n.1) that he "is also filing a motion from stay in order to have his claim adjudicated and liquidated in the State Court Litigation" and he claims that this bankruptcy case was filed "less than two months before the State Court Litigation's scheduled trial date." Dkt. 35, p.2:23-24. But, as of the preparation of this tentative ruling, no such motion for relief from the automatic stay has been filed.
The debtor asserts that this bankruptcy case was filed to protect the
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debtor from this litigation, but he does not cite authorities addressing whether claims litigation should be conducted in the Bankruptcy Court or in State Court. See, e.g., 28 U.S.C. 1334(c)(2) (mandatory abstention if non-core proceeding has been commenced, "and can be timely adjudicated," in a State forum of appropriate jurisdiction); 28 U.S.C. 1334(c)(1) (discretionary abstention); In re Tucson Estates, Inc., 912 F.2d 1162, 1166-67 (9th Cir.1990).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/2/18:
Grant, with a caution that in future counsel for the debtor must include a cost/benefit analysis in connection with every claim objection. (In this instance that requirement is being excused because of the nature of the dispute at issue and because the proposed distributions (dkt. 29) appear to make the cost of this claim objection worth the attorney fees involved in prosecuting it; but in future this Court does not intend to do the analysis for the movant.) Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Hossein Daneshvar Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/2/18
Docket 24
Debtor(s):
Sonia Noemi Delgado Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 08/30/18
Docket 26
Tentative Ruling for 10/25/18:
Appearances required. There is no tentative ruling, but the parties are directed to inform the Court of the status of the third party appraiser valuation, because as of the preparation of this tentative ruling nothing has been filed since the hearing on 8/30/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/30/18:
Appearances required. The tentative ruling is (1) to overrule the evidentiary objection of Aspen G. Revocable Trust ("Aspen") regarding the amount owed to the first lienholder and (2) require appearances to address issues with valuation of the subject property, for the following reasons.
Overrule Aspen's evidentiary objection. Aspen asserts that debtor has again failed to meet her evidentiary burden in an attempt to establish the amount owed to the first lienholder. But on August 13, 2018, the first lienholder (Bayview) filed proof of claim no. 6 reflecting a secured claim of
$652,860.72 (which debtor attached as an exhibit to her supplemental declaration (dkt. 32)). A proof of claim executed and filed in accordance with Rule 3001 (Fed. R. Bankr. P.) constitutes prima facie evidence of the validity
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and amount of the claim and is deemed allowed under 11 USC 502(a) unless a party in interest objects. Therefore, the tentative ruling is to overrule Aspen's objection.
Valuation. There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Blanca Estela Rubalcava Represented By Kevin Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 9/27/18
Docket 18
Debtor(s):
Alejandro Mario Palacio Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 10
Debtor(s):
John A. Marrone Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
U.S.C. section 522 (f) with Patricia Reyes fr. 8/2/18, 9/27/18
Docket 21
Tentative Ruling for 10/25/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This matter has been under submission since the 10/18/18 filing of the email chain (dkt. 42), and based on the arguments of the parties on 9/27/18 and the other documents before this Court. This Court will issue an oral ruling at the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/27/18:
Grant, based on the third party appraisal (see dkt. 29), which concludes that the value is slightly greater than what was alleged in the motion (dkt. 21).
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/2/18:
Appearances required.
Key documents reviewed (in addition to motion papers): Patricia Reyes ("Reyes") Opposition (dkt. 26); Declaration of Jihad M. Smaili (dkt. 27); Debtor's Evidentiary Objections and Request to Strike Declaration of Jihad M. Smaili (dkt. 35); Debtor's Reply (dkt. 36).
Current issues.
Timeliness of motion. Reyes objects that the motion is untimely pursuant to LBR 3015-1(b)(7). The tentative ruling is to overrule this objection as follows. First, Reyes has not affirmatively shown any undue prejudice resulting from debtor's delay in filing the motion. Second, this Court's own review of the docket suggests that there was in fact no prejudice to Reyes because debtor's plan stated an intent to file the motion (dkt. 14, PDF pp. 2, 11), and debtor filed her plan within 28 days of the petition date, on 4/14/18.
Evidentiary issues (dkt. 35, pp.2:22-5:9). The tentative ruling is to sustain objection numbers "1" and "2" in full, "3" on the hearsay ground (and the lack of reliability of Zillow, Redfin, and Trulia, at least when not used by a licensed real estate appraiser or other person who could qualify as an expert who generally can rely on hearsay), and "5" (there is no "4") because the Reyes appraisal must be authenticated by the appraiser, not by Reyes' attorney.
Despite sustaining all of these objections, the result is only that there is a disputed issue of fact as to the value of the subject property. Moreover, the debtor's Reply includes new evidence, which is generally improper in a reply. That new evidence may or may not be sufficient to support the debtor's asserted valuation of the subject property. This is an additional reason why
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there are disputed issues of material fact that must be resolved.
Note: Although Reyes' Opposition alleges that there are a number of "substantial omissions and misrepresentations" in the papers filed by the debtor (dkt. 26, p.4:12-21), she does not appear to assert any evidentiary objections based on those alleged facts, nor does she explain how they might be relevant to valuation or other issues in connection with this motion.
Therefore this Court expresses no view on those allegations.
Evidence of Value. There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes re: valuation of the subject property - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706. Note: Judge Bason requires valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Laura Fey Perez Represented By Leonard Pena
Movant(s):
Laura Fey Perez Represented By Leonard Pena
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
PROF-2013-S3 LEGAL TITLE TRUST II
vs DEBTOR
Docket 66
Debtor(s):
Alma Jean Anderson Represented By William J Smyth Stephen S Smyth
Movant(s):
PROF-2013-S3 Legal Title Trust II, Represented By
Robert P Zahradka John D Schlotter Dane W Exnowski Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 69
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Julie L. Keirns Represented By Matthew D. Resnik
S Renee Sawyer Blume
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
April Harriott Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONS DIRECT MORTGAGE, LLC
vs DEBTOR
Docket 30
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Christopher Darnell Bronson Represented By Matthew D. Resnik
Movant(s):
Nations Direct Mortgage, LLC Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 64
Revised Tentative Ruling for 11/6/18:
Grant, conditioned on Movant’s waiver of 11 U.S.C. 109(g)(2), as further set forth below. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling (subject to any modification on the record at the hearing). See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's opposition (dkt. 66)
Background
Movant Deutsche Bank National Trust Company, as trustee ("Duetsche") seeks relief from the automatic stay under 11 U.S.C. 362(d)(1) (the "R/S Motion") to pursue its remedies with respect to the real property and improvements at 4039 Ocean Dr, Channel Islands, CA 93035 (the "Property"). Debtor has filed a limited opposition and declaration (dkt. 66) disclaiming any connection with the subject property or with the borrower on the loan secured by that Property.
Based on that declaration it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. In other words, the borrower on the loan held by Deutsche (or someone acting for the borrower) purported to transfer an interest in the Property to a random debtor in bankruptcy, so as to
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implicate the automatic stay and stop a foreclosure sale. It was Debtor’s bad fortune to be the random choice of such wrongdoers. See, e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking schemes); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same).
Debtor's concern about a 180-day bar is well taken
Debtor’s opposition expresses concern that under 11 U.S.C. 109(g)(2) she will be subject a 180-day bar on filing another bankruptcy case if, in future, she needs to request and obtain a "voluntary dismissal." That is a legitimate concern. See also 11 U.S.C. 362(b)(21)(A) (automatic stay inapplicable to enforcement of lien against real property if debtor is ineligible under section 109(g)).
Section 109 limitations can be waived
There is authority that section 109 "eligibility issues" are non- jurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce "an illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 479 B.R. 545, 550-51 (9th Cir. BAP 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270.
Conclusion
Based on the foregoing, the tentative ruling is to terminate the automatic stay under 11 U.S.C. 362(d)(1), effective immediately (i.e., with a waiver of the 14 day stay of Rule 4001(a)(3), Fed. R. Bankr. P.), conditioned on (a) this Court’s determination that section 109(g)(2) does not apply under the above principles and, as additional protection, (b) Deutsche filing, before lodging any proposed order, a written waiver of the application of 11 U.S.C. 109(g)(2) or 362(b)(21)(A) to Debtor or Debtor’s property (as distinguished from the Property that is the subject of the R/S Motion).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Madalyn Mary Phillips Represented By Barry E Borowitz
Movant(s):
Deutsche Bank National Trust Represented By April Harriott Keith Labell Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, N.A.
vs DEBTOR
Docket 41
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jerrod Warren Overholt Represented By Adela Ulloa
Joint Debtor(s):
Rebekah Lynn Shevelew Represented By Adela Ulloa
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 32
Debtor(s):
Jesus Sanchez Represented By Rebecca Tomilowitz
Movant(s):
DITECH FINANCIAL LLC Represented By John Rafferty Renee M Parker
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 29
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to a continuance or agree to the terms of an adequate protection order (see the debtor's response, dkt. 31).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Laura Longley Represented By Erika Luna
Movant(s):
Wilmington Savings Fund Society, Represented By
John D Schlotter Heather D Bock Dane W Exnowski Cassandra J Richey
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MTGLQ INVESTORS, L.P.
vs DEBTOR
Docket 26
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to a continuance or agree to the terms of an adequate protection order (see the debtor's response, dkt. 32).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Elizabeth Jean Gates Represented By Steven A Alpert
Movant(s):
MTGLQ INVESTORS, L.P., its Represented By Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PACIFIC UNION FINANCIAL, LLC
vs DEBTOR
Docket 31
Debtor(s):
Raymond Duncan Represented By Alon Darvish
Movant(s):
Pacific Union Financial, LLC Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 28
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jodee Elizabeth Shipley Represented By Jeffrey J Hagen
Movant(s):
Caliber Home Loans, Inc. Represented By Christina J O Can Guner
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 44
Tentative Ruling for 11/6/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Josephine Louise Starling Represented By Heather J Canning Barry E Borowitz
Movant(s):
Wilmington Savings Fund Society, Represented By
Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
US BANK NATIONAL ASSOC
vs DEBTOR
Docket 46
Debtor(s):
Tracie V. Kimbrough Represented By Steven A Alpert
Movant(s):
US Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 687
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 30
Debtor(s):
Rachel Cervantes Carrillo Represented By Axel H Richter
Movant(s):
Deutsche Bank National Trust Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] HOMESTREET BANK
vs
DEBTOR
Docket 20
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Evelyn Sahagun Caba Represented By Kevin Tang
Movant(s):
Homestreet Bank Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] THE BANK OF NEW YORK MELLON
vs
DEBTOR
Docket 19
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Bibian Escobido Afable Represented By Onyinye N Anyama
Movant(s):
The Bank of New York Mellon fka Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 32
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 34).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Billy Lawson Jr Represented By Brad Weil
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] BANK OF AMERICA, NA
vs
DEBTOR
Docket 24
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Michael Shafer Represented By Kahlil J McAlpin
Movant(s):
BANK OF AMERICA, N.A Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK TRUST COMPANY AMERICAS
vs DEBTOR
Docket 30
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
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exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Villapando Represented By Steven Ibarra
Movant(s):
Deutsche Bank Trust Company Represented By Kelsey X Luu Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] DEUTSCHE BANK NATIONAL TRUST CO
vs
DEBTOR
Docket 15
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
Alternatively, there is no automatic stay under 11 U.S.C. 362(c)(3) and (j) because (a) the debtor's prior case (# 2:18-bk-16868-WB) was dismissed (on 7/2/18) within one year before this case was filed (on 7/18/18), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to the debtor in personam and as to property of the debtor. See In re Hernandez & Jiminez, Case No. 2:11-bk-53730-NB, Dkt 40.
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under
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11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
10:00 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria Elena Perez Pro Se
Movant(s):
Deutsche Bank National Trust Represented By Nancy L Lee Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 14
- NONE LISTED -
Debtor(s):
Rodel Catajay Fondevilla Represented By Carlo Reyes
Joint Debtor(s):
Elsa Angcaco Fondevilla Represented By Carlo Reyes
Movant(s):
U.S. BANK NATIONAL Represented By James F Lewin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CSAB MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-1, U.S. BANK NATIONAL ASSOC
vs DEBTOR
Docket 14
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise
10:00 AM
ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is insufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fernando Hernandez Pro Se
Movant(s):
CSAB Mortgage-Backed Pass- Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HERBERT V. LARSON
vs DEBTOR
Docket 19
Revised Tentative Ruling for 11/6/18:
Deny at this time, without prejudice to renewing the motion if, after Movant files a proof of claim in Debtor's father's bankruptcy case, any claim litigation and payment are not diligently pursued by Debtor's father. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's Response (dkt. 33); Movant's Reply (dkt. 35).
Reasons:
Background
Movant seeks to collect approximately $75,000 in legal fees from Debtor, secured by a deed of trust against his parents' home. Dkt. 19, p.2:6 & Ex. 1. That home is not property of Debtor's estate, and Movant emphasizes that he is not pursuing Debtor's parents in personam and is solely seeking in rem relief, to the extent if any that the automatic stay (11
U.S.C. 362(a)) or the co-debtor stay (11 U.S.C. 1301) apply. The tentative ruling is that both apply.
The automatic stay
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The automatic stay prevents not only acts against property of the
estate but also "any act to collect, assess, or recover a [prepetition] claim against the debtor (11 U.S.C. 362(a)(6)). See also 11 U.S.C. 362(a)(1) (staying any "action or proceeding" against the debtor).
To illustrate how these provisions apply, consider the parties' disputes will play out. Movant seeks an order from this Court giving him the green light to foreclose. He can commence either a judicial or a nonjudicial foreclosure, but in the latter instance Debtor's parents presumably will bring an action in State Court to enjoin the foreclosure, so one way or the other Movant and Debtor's parents will be in litigation about the reasonableness of Movant's fees for representing Debtor. How can that be anything but an act to collect on a claim against Debtor?
The tentative ruling is that the automatic stay applies.
The codebtor stay
The codebtor stay provides that a creditor "may not act, or commence or continue any civil action, to collect all or part of a consumer debt of the debtor from any individual that is liable on such debt with the debtor" (subject to certain exceptions). 11 U.S.C. 1301(a) (emphasis added). A consumer debt is a "debt incurred by an individual primarily for a personal, family, or household purpose." 11 U.S.C. 101(8).
Movant argues that the codebtor stay "applies to consumer debts only, not to debts for professional fees, and thus does not apply to Mr. Larson's claim for attorney fees." Dkt. 19, at PDF p.14:5-7. This is not persuasive.
Debtor incurred the debt at issue in defense of the criminal case against him in Louisiana. Dkt. 19, Ex. 2. It is hard to conceive of a debt that would be incurred for a more personal purpose. Debtor's authorities, and distinction of the case cited by Movant, are persuasive on this issue. See, e.g., In re Kelly, 841 F.2d 908, 913 (9th Cir. 1988).
Movant argues that the codebtor stay only applies to in personam acts and not in rem because the statute refers to any act "to collect ... from any individual that is liable on such debt with the debtor" (subject to certain exceptions). 11 U.S.C. 1301(a) (emphasis added). It is true that some courts have adopted this reading. See, e.g., In re Whitlock-Young, 571 B.R. 795, 807-808 (Bankr. N.D. Ill. 2017). But the tentative ruling is to disagree with such authority.
The most natural reading of "any" act to collect from any individual is
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both acts in personam and in rem. Certainly anyone whose house or bank account or other property is being seized would be surprised to hear that such acts are not acts against them. The plain meaning of the statute appears to be that both in personam and in rem claims are barred.
The alternative reading reasons by analogy to the distinction in section 362(a) between acts against property and other types of acts. But Congress did not track the language in section 362(a) in section 1301, so the analogy is weak. In addition, one can also reason by analogy to 11 U.S.C. 102(2) which equates a claim against a debtor with a claim against property of that debtor, so Congress' reference to acts against an "individual" in section 1301 should not be presumed to be some sort of implicit distinction between in personam and in rem liability.
Assuming for the sake of discussion that there is ambiguity in the statute, it seems that the purpose of the codebtor stay would be undermined if creditors were barred from suing codebtors in personam but could foreclose on codebtors' houses at will.
Limitations on codebtor stay
As Movant points out, there are some limitations on the codebtor stay.
In particular, if Movant files a proof of claim in Debtor's father's bankruptcy case, and litigates any disputes, but Debtor fails to take appropriate steps to resolve those disputes and pay whatever is owed, then Movant presumably would have shown irreprable harm within the meaning of 11 U.S.C. 1301(c) (3). But on the present record the tentative ruling is that none of the exceptions to the codebtor stay applies.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
This court anticipates posting a tentative ruling at a later time.
10:00 AM
Debtor(s):
Matthew Michael Totaro Represented By Michael R Totaro
Movant(s):
Herbert V. Larson Jr. Represented By Kelvin J Lo
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ROBERT R. WINCH
vs DEBTOR
.
Docket 304
Revised Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court has reviewed the motion (dkt. 304), Debtor's response (dkt. 306, 309, 310, 311, 312), and Movant's reply (dkt. 310), as well as other relevant filed documents and records of this Court regarding this bankruptcy case.
Procedural issues
The tentative ruling is that all procedural deficiencies by Debtor have been cured or should be excused by this Court, but that a continuance is appropriate for Movant to serve all persons on the Creditor Matrix, because of the potential impact on Debtor's ability to make payments under his confirmed chapter 11 plan. See Rules 4001(a)(1) & 9014 (Fed. R. Bankr. P.) (requiring service on debtor, 20 largest nonpriority unsecured creditors, and "such other entities as the court may direct").
The tentative ruling is to set a continued hearing for 12/11/18 at 10:00 a.m., with a deadline of 11/13/18 for Movant to serve all persons on the Creditor Matrix and file a proof of service.
Applicability of automatic stay
Under Debtor's confirmed chapter 11 plan (dkt. 227, Art. IV.B.), 11
U.S.C. 1141(b)&(c), and the confirmation order (dkt. 253) property of the
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bankruptcy estate has re-vested in Debtor. That has the effect of terminating the automatic stay as to such property (11 U.S.C. 362(c)(1)), but the automatic stay continues in all other respects until this case is closed or dismissed. Therefore Movant's action is stayed because the stay applies to the commencement of any action or proceeding against Debtor that could have been commenced prepetition, and to assess, collect, or recover a prepetition claim. 11 U.S.C. 362(a)(1), (a)(6), & (c)(2). Those restrictions are paralleled by this Court's order confirming Debtor's plan. Dkt. 253, para. 12.
In sum, the tentative ruling is that Movant does in fact need relief from this Court before he may proceed with any action against Debtor.
Contemplation of limited relief
At the continued hearing, absent persuasive arguments by Movant, Debtor, or other parties in interest, this Court anticipates modifying and conditioning the automatic stay under 11 U.S.C. 362(d)(1) such that Movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations, except for minor modification to address the post-confirmation status of this case).
No enforcement against property subject to chapter 11 plan
To avoid disruption of payments to other creditors, the tentative ruling is to condition and limit relief from the automatic stay such that Movant may not enforce any judgment against any property of Debtor pending further order(s) of this Court (e.g., an order confirming a modified chapter 11 plan that provides for Movant, or an order granting further relief from the automatic stay).
Note: Movant would be permitted to enforce its final judgment by collecting upon any available insurance in accordance with applicable nonbankruptcy law. But, although two insurance companies are named as defendants in Movant's nonbankruptcy complaint (dkt. 304, Ex.A, at PDF p.14), Movant has not established a sufficient likelihood that insurers would pay costs of defense, or any other reason to believe that any insurance would reduce the impact on this bankruptcy case or favor relief from the automatic stay.
Claim allowance, priority, and discharge issues
Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the
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existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Additional analysis
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to
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determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that these factors weigh in favor of granting relief as set forth above. The following factors are most significant,
Other defendants
As Debtor acknowledges, there is a "difficulty" in that there are "other defendants not subject to bankruptcy court jurisdiction" (dkt. 306, p.19:14-15). This is the most significant factor in the circumstances presented.
Expertise of fora
As Debtor's letter to movant acknowledges, California law "does not apply" (dkt. 306, Ex.2, at p.38), and this California Bankruptcy Court does not have any expertise in the laws of Louisiana. In addition, as Movant argues, the Louisiana Courts have experience in water intrusion cases (dkt. 310, at PDF p.3:16-17).
It is true that this Bankruptcy Court has expertise in nondischargeability matters; but as noted separately below that does not appear to be as significant an issue in this case as in typical cases.
Expense and inconvenience
This Court recognizes that, as Debtor argues (dkt. 306,
pp.19:16-20:16, & 21:13-20, 22:1-20), litigation in Louisiana not only will be inconvenient for him but likely will be more expensive for him than litigation before this Bankruptcy Court, to the possible detriment of all other creditors. But the tentative ruling is that this consideration is outweighed by the other considerations noted above combined with the fact that litigation in this California Bankruptcy Court would be inconvenient and expensive for Movant. Cf. dkt. 306, pp.22:25-24:1 (Debtor's "balance of hurt" argument).
Nondischargeability appears to be mostly a red herring for present purposes
Debtor has not yet received his discharge under 11 U.S.C. 1141(d)(5). Normally nondischargeability issues have the potential to make a substantial difference to a motion for relief from the automatic stay because, if the parties are not very careful to obtain issue preclusive findings of fact and conclusions of law in the nonbankruptcy forum, the parties might have to re-litigate their disputes in the Bankruptcy Court to determine whether the elements of a nondischargeability claim are met. See, e.g., 11 U.S.C. 523(a)(2)(A). In the
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present circumstances, however, the tentative ruling is that this consideration should not weigh heavily in the analysis.
As Debtor describes (dkt. 306, pp.15:25-16:9), it might well be that Movant can file a proof of claim and assert whatever nondischargeability claim he might have under 11 U.S.C. 523(a)(2)(A) and (3)(B). But it is not clear to this Court that it will make a substantial difference if the claim is nondischargeable, because Debtor's confirmed chapter 11 plan (dkt. 227, 253) provides for 100% payment to creditors and, although that plan does not include movant, presumably it could be amended under 11 U.S.C. 1127.
True, if (hypothetically) Movant were to prevail on his claims and obtain a very large judgment against Debtor then that might force Debtor to amend his Plan to pay only a fraction of creditors' claims. See dkt. 306, Ex.2, at p.39 (suggesting 10% recovery). But Debtor is paying a number of substantial claims, so if Movant files a proof of claim (per 11 U.S.C. 523(c)(3)) and obtains a smaller judgment then presumably the Plan could be amended to provide for 100% payment of that judgment.
In other words, on the present record it appears somewhat likely that the distribution could be the same regardless whether the claim is nondischargeable or not, so this consideration does not appear to have a major impact on whether or not to grant relief from the automatic stay.
Caveat: The immediately preceding paragraph is not intended to constitute any sort of determination on whether a nondischargeability adversary proceeding should or should not be filed, or what might be the consequences of failing to do so or of doing so. The point is only that for purposes of the present motion for relief from the automatic stay this Court believes that nondischargeability issues are not as relevant as they might be in other cases.
Merits of underlying litigation
As Debtor points out, Movant's allegations are vague and his claims may suffer from a number of weaknesses. See generally dkt. 306, Ex.2. But those issues can be addressed by whichever forum adjudicates this claim.
They do not appear to be sufficient to warrant an outright denial of any relief from the automatic stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
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WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply.This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal
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analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Terrell-Josef Garcia Tabamo Pro Se
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Movant(s):
Wilmington Savings Fund Society, Represented By
Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
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SANTANDER CONSUMER USA INC.
vs DEBTOR
Docket 28
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Juan Antonio Dimas Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Alejandra Lopez Represented By
Hasmik Jasmine Papian
Movant(s):
Santander Consumer USA Inc., an Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
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SANTANDER CONSUMER USA INC.
vs DEBTOR
Docket 26
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Magali Toribio Represented By Scott Kosner
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
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SANTANDER CONSUMER USA, INC. VS
DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Sophia Lopes Represented By
David Samuel Shevitz
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
Trustee(s):
Brad D Krasnoff (TR) Pro Se
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CHARLTON WEEKS LLP
vs DEBTOR
Docket 17
Grant in part, deny in part, as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay applies. Movant argues (dkt. 17, p.5, para.3, and PDF p.11) that the automatic stay should not apply because Debtor is ineligible to be a debtor in bankruptcy under 11 U.S.C. 109(g)(1). Movant bases this argument on the dismissal of one of Debtor's prior bankruptcy cases (Case No. 2:18-bk-16715-SK) on 6/29/18 for failure to file schedules.
Movant has not established that Debtor's failure to file schedules was "willful." Many debtors have difficulty filling out the (very lengthy) bankruptcy forms despite good faith efforts to do so. Therefore this Court rejects this argument.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2) and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
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Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable; but limit it to Debtor because the motion is so limited:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed by Debtor within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property from Debtor shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
Evidence. This Court notes that the declaration attached to the motion is incomplete and/or contains changes to the mandatory form (which are hereby treated as a request to amend the form per LBR 9009-1). This court makes no determination whether such omissions/changes would withstand an evidentiary objection. Nevertheless, this Court has considered the key documents because (a) there are no evidentiary objections and/or (b) those documents appear to be admissible on other grounds. In future the movant's failure to complete the form properly may result in denial of the motion sua sponte.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Carlos Guevara Pro Se
Movant(s):
Charlton Weeks LLP Represented By James W Charlton
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JOSEPH DONG
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
Evidence. This Court notes that the declaration attached to the motion is incomplete and/or contains changes to the mandatory form (which are hereby treated as a request to amend the form per LBR 9009-1). This court makes no determination whether such omissions/changes would withstand an evidentiary objection. Nevertheless, this Court has considered the key documents because (a) there are no evidentiary objections and/or (b) those documents appear to be admissible on other grounds. In future the movant's failure to complete the form properly may result in denial of the motion sua sponte.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Breana R Jones Pro Se
Movant(s):
Joseph Dong Represented By
Paul E Gold
Trustee(s):
Heide Kurtz (TR) Pro Se
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Docket 8
Grant, under 11 U.S.C. 362(c)(4) & (j). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Justin Maribe Represented By Michael Avanesian
Movant(s):
Specialized Loan Servicing LLC, as Represented By
Bethany Wojtanowicz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PABLO ARTURO CARDOZA
vs DEBTOR
Docket 30
Continue to 11/27/18 at 10:00 a.m. for service by Movants of (1) this tentative ruling and (2) the motion papers on all persons listed on the creditor matrix in this case. Appearances are not required on 11/6/18.
Option for shortened time: This Court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers via U.S. mail on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Reasons: Rule 4001(a)(1) (Fed. R. Bankr. P.) provides for service on specified persons and "on such other entities as the court may direct." It appears appropriate to direct further notice in this case because Movants seek to avoid the transfer to debtor, and recover for themselves, the property at 623 W. Tichenor St., Compton, CA 90220, which might be very valuable real estate that could be administered for the benefit of other creditors.
This Court recognizes that, according to Movants, Debtor wrongfully obtained title to the property by, allegedly, exerting undue influence on their and Debtor's mother, and they surmise that the father's signature must have been forged. They claim they were thereby deprived them of their share of their inheritance from the parents.
But this Court also notes that their nonbankruptcy complaint (dkt. 32, Ex.1) acknowledges that Debtor took care of their parents when they were ill, and further acknowledges that two mentally ill siblings also live on the property. Id. para. 11, 18. All of that implies that Debtor (or her bankruptcy estate) might have defenses. Movants' complaint also acknowledges (dkt.
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32, Ex.1, p.3, para. 15) that there is approximately $150,000 to $250,000 of equity in the property.
This Court also recognizes that, according to Movants, mandatory abstention applies. See 28 U.S.C. 1334(c)(2). But that does not necessarily mean that the automatic stay must be terminated in all respects, including taking property out of this bankruptcy estate, at least without conditions or limitations.
Finally, this Court recognizes that creditors' interests are ably protected by the Chapter 13 Trustee, who is in this Court's experience very diligent about considering possible adverse consequences to creditors. But in this particular case there may be facts that the Chapter 13 Trustee does not know, and in any event both secured and unsecured creditors might wish to be heard on the issues.
For all of the foregoing reasons, the tentative ruling is to continue this matter with a direction to Debtor to provide notice as set forth above.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Martha Martinez Represented By Julie J Villalobos
Movant(s):
Jesus Diaz Munoz Represented By Mark J Markus
Pablo Arturo Cardoza Represented By Mark J Markus
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Trustee(s):
Kathy A Dockery (TR) Pro Se
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MARIA LUISA CAMACHO LOPEZ
vs DEBTOR
Docket 30
Grant as provided below. Appearances required because the parties appear to be somewhat confused about what is or is not stayed, and what issues this Bankruptcy Court can or cannot determine (e.g., although the opposition asserts that there was never a valid marrieage, that is not an issue before this Bankruptcy Court).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Limited relief. Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate. The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
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Claim allowance, priority, and discharge issues. Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Divorces: opportunity for parties in this bankruptcy case to object to any resolution regarding characterization or division of property. As a preliminary matter, the automatic stay does not apply at all to various aspects of divorces, including child custody or visitation, the establishment or modification of domestic support (or collection of domestic support from property that is not property in which the bankruptcy estate asserts an interest), or the dissolution of the marrigage (except to the extent the proceeding seeks to determine the division of property that is property of the estate, including characterization of property as set forth below). See 11
U.S.C. 362(b)(2)(A)-(C). Numerous other aspects of divorces are subject to the automatic stay.
Any characterization of property (as community or separate property) and any other division of property shall be treated for bankruptcy purposes as a proposed resolution between the debtor and the non-debtor spouse/former spouse. To assure that there is an opportunity for other parties in interest in this bankruptcy case to object to any undue prejudice that may result from such a proposed resolution, it shall be treated as a proposed compromise or settlement (even if it is embodied in a nonbankruptcy judgment) that must be the subject of adequate notice and an opportunity for a hearing under Rule 9019 (Fed. R. Bankr. P.) before final relief from the automatic stay to make any such resolution effective.
In limiting relief from the automatic stay in this fashion, this Bankruptcy Court is attempting to recognize on the one hand the unique expertise and aptitude of the State Courts regarding divorce matters, and on the other hand the unique expertise and aptitude of this Bankruptcy Court regarding the rights of creditors (and other parties in interest in bankruptcy cases). This Bankruptcy Court cannot adjudicate divorces; and conversely the State Court
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might not be willing or able to address the bankruptcy issues (creditors of one spouse might not even have standing to be heard in the State Courts, and yet their interests are important and, in limited respects, the Bankruptcy Code may override nonbankruptcy law regarding the division and distribution of property, especially when a divorce judgment or supplemental orders are not final as of the date of the bankruptcy petition). See generally 11 U.S.C.
101(14A) (certain claims characterized for bankruptcy purposes independent of how they are "designated" for nonbankruptcy purposes); In re Cohen (Bankr. C.D. Cal. #2:13-bk-26483-NB, Adv. #2:14-ap-1484-NB, dkt. 16)
(same), reversed on other grounds (C.D. Cal. #2:14-cv-08939-SJO, dkt. 30) (favoring ongoing proceedings in State Court, subject to later review by Bankruptcy Court).
For example, marital settlement agreements can constitute fraudulent transfers as against creditors. Mejia v. Reed, 31 Cal. 4th 657 (2003).
Similarly, if there were assets that were hidden from a (former) spouse then perhaps for nonbankruptcy purposes the debtor should have to turn over those assets to the former spouse, but for bankruptcy purposes creditors also may have a legitimate interest in being paid out of any hidden assets, perhaps even if those assets normally would be exempt. See generally In re Lua, 529 B.R. 766, 775-79 (Bankr. C.D. Cal. 2015). This Bankruptcy Court expresses no opinion whether such general principles apply in this specific case - the point is only that in order to balance the interests of all parties in interest it appears that any resolution in State Court should be subject to an opportunity for objection in this bankruptcy case.
Additional analysis:
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D.
10:00 AM
Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that these factors weigh in favor of granting relief as set forth above. Most significantly, the existence of a specialized tribunal to hear divorce actions and the interest of judicial economy.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Francisco Antonio Cordova Represented By Arsen Pogosov
Movant(s):
Maria Luisa Camacho Lopez Represented By
Beatriz Pelayo-Garcia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 13
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edward Jenkins Jr. Represented By Thomas B Ure
Joint Debtor(s):
Iris Michele Hearn-Jenkins Represented By Thomas B Ure
Movant(s):
Edward Jenkins Jr. Represented By Thomas B Ure
Iris Michele Hearn-Jenkins Represented By Thomas B Ure Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 9
Grant, subject to the following conditions, and also subject to any opposition at the hearing. Appearances required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gina Adams Represented By
Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 8
Grant, subject to the following conditions, and also subject to any opposition made orally at the hearing (see dkt. 11). Appearances required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Myesha Nicole Sherrer Represented By Andrew Moher
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 45
Debtor(s):
Charles Smith Represented By William G Cort
Movant(s):
HSBC BANK USA, NATIONAL Represented By
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FEDERAL NATIONAL MORTGAGE ASSOCIATION
vs DEBTOR(S)
Docket 65
Tentative Ruling for 11/6/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see Loan Modification Final Report, dkt. 89).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to provide an update regarding the LMM status, and any other matters relevant to this motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue to 9/18/18 at 10:00 a.m. to address the following issues. Appearances are not required on 8/7/18.
At the 5/22/18 hearing, this Court continued the matter for the debtors to complete the LMM Program (see Order granting motion to commence LMMP, dkt. 80). This Court has reviewed the debtors' filed status report (dkt. 82), which states that debtor is current with all adequate protection payments.
Nothing in this tentative ruling keeps the parties from alerting chambers of any wish to appear at the 8/7/18 hearing in order to inform this Court about any other issues pertaining to the underlying motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 75).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Carlos Roberto Calderon Represented By Tamar Terzian
Joint Debtor(s):
Rosalva Calderon Represented By James T King Tamar Terzian
Movant(s):
Federal National Mortgage Represented By
Andrew David Goldberg Lisa B Singer
Renee M Parker
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MTGLQ INVESTORS, LP
vs DEBTOR
Docket 64
Debtor(s):
James Razumich Represented By Matthew D. Resnik
Movant(s):
MTGLQ Investors, LP Represented By Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PARAMOUNT RESIDENTIAL MORTGAGE GROUP
vs DEBTOR
Docket 57
Debtor(s):
Viridiana Gutierrez Represented By William G Cort
Movant(s):
Paramount Residential Mortgage Represented By
Jason A Savlov Jason C Kolbe Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FEDERAL NATIONAL MORTGAGE ASSOC
vs DEBTOR
Docket 37
Debtor(s):
Martin Medina Vargas Represented By Joshua R Engle
Movant(s):
Federal National Mortgage Represented By Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 39
Debtor(s):
Sagrario Medina Represented By William W Tiffany
Movant(s):
The Bank of New York Mellon FKA Represented By
Tyneia Merritt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF AMERICA, NA
vs DEBTOR
Docket 27
Debtor(s):
Jessica E Meza Represented By Peter L Lago
Movant(s):
Bank of America, N.A. Represented By
William F McDonald III Theron S Covey
James Edward McDaniel Diana Torres-Brito Mary D Vitartas
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 46
Debtor(s):
David Lee Williams Represented By Vernon R Yancy
Movant(s):
U.S. BANK NATIONAL Represented By April Harriott
Matthew R. Clark III Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 34
Debtor(s):
Martha Perez Represented By
Thomas B Ure
Movant(s):
Nationstar Mortgage LLC Represented By
Melissa A Vermillion Darlene C Vigil Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 51
Debtor(s):
Victor Alvarez Represented By Erika Luna
Joint Debtor(s):
Dianna Alvarez Represented By Erika Luna
Movant(s):
JPMORGAN CHASE BANK, Represented By Joseph C Delmotte Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 34
Debtor(s):
Brian Camper Represented By Michael D Luppi
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Theron S Covey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, N.A.
vs
DEBTOR (S)
Docket 42
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court has authorized the sale of the subject property (see Order, dkt. 58) subject to certain conditions requested by the secured creditor. Since then, Debtor has filed a new motion for authority to sell real property (dkt. 63). The parties are directed to address whether this motion should be granted, whether the hearing should be further continued to permit the sale of the property to close, or any other matters relevant to the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
10:00 AM
At the hearing on 7/10/18 this Court was persuaded to continue this matter for the parties to attempt to negotiate an agreed adequate protection order. No such order has been lodged, but meanwhile this Court has authorized the sale of the subject property (see Order, dkt. 58) subject to certain conditions requested by the secured creditor. The parties are directed to address whether this hearing should be further continued to permit the sale of the property to close, or any other matters relevant to the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alejandro Hernandez Castanon Represented By Jacqueline D Serrao
Joint Debtor(s):
Guadalupe Griselda Inda Represented By Jacqueline D Serrao
Movant(s):
HSBC Bank USA, N.A. Represented By Sean C Ferry Theron S Covey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 33
Tentative Ruling for 11/6/18:
Take this motion for relief from the automatic stay off calendar, in view of this Court's order (dkt. 43, para. 14) granting the debtor's motion to commence loan modification program, without prejudice to the movant self-calendaring this motion again if the loan modification program is terminated without a consensual loan modificaton. Appearances are not required.
This Court is aware that the movant has concerns (dkt. 49) about whether the loan modification will be granted, and whether any modified payment would be as low as $3,600 per month, but the movant did not object to the motion (dkt. 39) to commence the LMM program on these terms, and this Court issued an order (dkt. 43) approving these terms.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
10:00 AM
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Deepak Sagar Represented By Madhu Kalra
Movant(s):
Bayview Loan Servicing, LLC., as Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
REDIGER INVESTMENT MORTGAGE FUND, LLP
vs DEBTOR
Docket 38
Debtor(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Movant(s):
Rediger Investment Mortgage Fund Represented By
Misty A Perry Isaacson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 37
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 10/16/18 this Court was persuaded to continue this matter for the parties to attempt to negotiate an agreed adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/16/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
10:00 AM
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David Watson Gayman Represented By Matthew D. Resnik
Movant(s):
Wells Fargo Bank N.A. Represented By
Dane W Exnowski Megan Porter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 24
Debtor(s):
Geri Lynne Thomas Represented By
D Justin Harelik
Movant(s):
The Bank of New York Mellon, et al, Represented By
Diana Torres-Brito Bonni S Mantovani Alexander G Meissner
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 49
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether this matter should be continued in view of the debtor's alleged progress in proceeding toward a loan modification (despite the absence of anything on the docket reflecting such progress) and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 52).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Francisco Santos Represented By Sanaz S Bereliani
Movant(s):
Deutsche Bank National Trust Represented By Cassandra J Richey
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:16-01046 Cohen v. Cohen
Monetary Sanctions Award Against Fariba Cohen
Docket 150
- NONE LISTED -
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Beth Ann R Young
Movant(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Beth Ann R Young
Plaintiff(s):
Fariba Cohen Represented By
11:00 AM
Alan W Forsley Susan K Seflin Kevin J Leichter
11:00 AM
Adv#: 2:17-01365 Naranjo v. Moisa et al
(2) Declaratory Relief
fr. 10/03/17, 11/17/17, 12/5/17, 4/17/18, 5/29/18, 7/10/18, 08/07/18, 9/4/18
Docket 1
Debtor(s):
Virginia Naranjo Represented By David R Chase
Defendant(s):
Rosa Moisa Pro Se
Edward Trevino Moisa Pro Se
Plaintiff(s):
Virginia Naranjo Represented By David R Chase
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18
Docket 1
Tentative Ruling for 11/6/18:
Continue to 12/11/18 at 11:00 a.m., based on Plaintiff's unilateral status report (adv. dkt. 52), with a brief status report due 12/4/18. At the continued status conference Defendants' counsel is directed to address why they did not join in that status report, or file their own. Appearances are not required on 11/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Continue to 11/6/18 at 11:00 a.m., based on reports from the mediator and the parties (adv. dkt. 48-50). Brief status report due 10/30/18. Appearances are not required on 10/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
11:00 AM
appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Continue to 11/6/18 at 11:00 a.m., based on reports from the mediator and the parties (adv. dkt. 48-50). Brief status report due 10/30/18. Appearances are not required on 10/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED FOR BREVITY]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C Vanderhoof
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
11:00 AM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18
Docket 1
Tentative Ruling for 11/6/18:
(1) Extend various deadlines as set forth below. (2) Continue this Status Conference to 12/11/18 at 11:00 a.m., based on the parties' status report (adv. dkt. 38), with a brief status report due 12/4/18. Appearances are not required on 11/6/18.
Extended deadlines: Extend the discovery cutoff to 2/28/19 (per adv. dkt. 38, p.2:7-9), with an extension of the same number of days for the other remaining deadlines in this Court's schedulings order (adv. dkt. 34) (i.e., the deadline for exchange of any expert reports, and for any hearing on any dispositive motions). In addition, add a deadline for the close of discovery from experts (depositions etc.) two weeks after their reports are due. Plaintiff is directed to lodge a proposed scheduling order containing these new deadlines, and to file and serve a notice of lodgment or else obtain the signature of Defendants' counsel approving the order as to form.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Continue to 11/6/18 at 11:00 a.m., based on the parties' status report (adv.
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dkt. 37). Brief status report due 10/30/18. Appearances are not required on 10/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The court has reviewed the parties' joint status report (adv. dkt. 23) and the other filed documents and records in this adversary proceeding.
The plaintiff states (dkt. 23, p.2) that he requested entry of a default against defendants Andrae Perez and Accelerated Capital Group, Inc., but the Clerk of this Court has issued notices of non-entry of defaults (dkt. 15, 16). When will the plaintiff correct the deficiencies?
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. docket number(s) 23).
Deadlines: This adversary proceeding has been pending since 11/21/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 12/31/18 Expert(s) - deadline for reports: 1/14/19
Dispositive motions to be heard no later than: 2/11/19 Joint Status Report: 9/4/18
Continued status conference: 9/18/18 at 11:00 a.m.; brief status report due 9/4/18.
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Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing, this Court continued the matter to allow the parties time to meet and confer about the various deadlines that this court should set in this adversary proceeding and/or court-ordered mediation. This matter was further continued to today's date for the parties to participate in mediation on or about 5/21/18 (see Order, adv. dkt. 21). This Court also directed the parties to file a status report by 5/29/18, but the parties have not done so--for a second time.
There is no tentative ruling, but the parties are directed to address why they have not filed a status report, and to provide an oral status report, and are cautioned that continued failure to adhere to the applicable rules and orders of this Court may result in sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing, this Court continued the matter to allow the parties time to meet and confer about the various deadlines that this court should set in this adversary proceeding and/or court-ordered mediation. This court also directed the parties to file a status report by 4/3/18, but the parties have not done so.
There is no tentative ruling, but the parties are directed to address why they have not filed a status report, and to provide an oral status report, and are cautioned that continued failure to adhere to the applicable rules and orders of this Court may result in sanctions. The tentative ruling is to continue this status conference to 5/29/18 at 11:00 a.m. with a brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties requested a brief continuance of this status conference from 2/27/18 to today's date (see Joint Status Report, adv. dkt. 10). At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). There is no tentative ruling, but the parties should be prepared to discuss the status of this case.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 3/6/18 at 11:00 a.m. Appearances are not required on 2/27/18.
Reasons: At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). The plaintiff and one defendant (the debtor) have now filed a joint status report (adv. dkt. 10) requesting a brief continuance.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address why they failed to file the required status report, and also the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his
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claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/6/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines/dates: This adversary proceeding has been pending since 11/21/17. The tentative ruling is to set the following deadlines/dates. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/6/18
Continued status conference: 2/27/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:17-01174 Stardust Vacation Club and Americana Vacation Club v. MacMillan
fr. 5/2/17, 06/06/17, 8/22/17, 11/14/17, 01/30/18, 5/1/18, 6/26/18, 08/14/18,
9/18/18
Docket 1
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address whether scheduling or other matters are affected by the unresolved issues re settlement noted in the parties' joint status report (adv. dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Continue to 11/6/18 at 11:00 a.m., with a brief status report due 10/23/18 (unless this matter is mooted by this Court approving the parties' settlement). See dkt. 34. Appearances are not required on 9/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Set a deadline of 8/17/18 for the parties to file a corrected copy of their status report (adv. dkt. 31, which has illegible text at the top of p.2), and continue this status conference to 9/18/18 at 11:00 a.m., with a brief status report due 9/4/18 (unless this matter is mooted by this Court approving the parties' settlement). See adv. dkt. 31. Appearances are not required on 8/14/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Continue to 8/7/18 at 11:00 a.m., with a brief status report due 7/24/18 (unless this matter is mooted by this Court approving the parties' settlement). See dkt. 29 (status report). Appearances are not required on 6/26/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This court has reviewed the parties'
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joint status report (dkt. 27).
Mediation. The tentative ruling is to order mandatory mediation (again), with a deadline of 5/15/18 for the parties to lodge proposed mediation order(s).
Deadlines: This adversary proceeding has been pending since 2/24/17. Due to the parties' prior delays and an anticipated settlement the normal deadlines for completion of discovery and other matters have not been applied. The tentative ruling is to set the following deadlines, to run concurrent with the parties' mediation. The parties are cautioned that once the following deadlines have been established this Court is unlikely to be persuaded to amend them.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 9/3/18. Expert(s) - deadline for reports: 9/17/18.
Expert(s) - discovery cutoff (if different from above): 9/24/18. Dispositive motions to be heard no later than: 11/6/18.
Joint Status Report: 6/12/18.
Continued status conference: 6/26/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/11/17.
Pretrial conference: 11/27/18 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 12/6/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 12/10/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the results of their mediation. In future, the parties are cautioned that they are required under the Local Bankruptcy Rules to file a status report.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Continue to 11/14/17 at 11:00 a.m. in view of the parties' mediation scheduled for 10/27/17 (adv. dkt. 18). Appearances are not required on 8/22/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 6/6/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 10) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or
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judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 2/24/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 7/21/17. Expert(s) - deadline for reports: 8/4/17.
Expert(s) - discovery cutoff (if different from above): 8/18/17. Dispositive motions to be heard no later than: 9/29/17.
Joint Status Report: 8/29/17.
Continued status conference: 9/12/17 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/11/17.
Pretrial conference: 10/17/17 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 10/20/17 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 10/25/17 at 9:00 a.m.
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Stardust Vacation Club and Represented By Bruce Grego
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Docket 142
Appearances are not required. This Court has reviewed the application papers of the Danning, Gill firm (Chapter 7 Trustee's counsel) (dkt. ), the opposition of Construction Laborers Trust Funds ("CLTF") (dkt. 146), and the reply (dkt. 147). The tentative ruling is to approve the fees and expenses in the full amounts of $77,734.50 and $2,905.09 on an interim basis, but permit an interim distribution of only $55,000 fees plus $2,905.09 expenses, with all parties' rights reserved with respect to any final allowance and distribution.
Reasons: The tentative ruling is that, although this Court agrees with the firm on the law (that its fees and expenses have priority over CLTF's asserted chapter 13 administrative expense and priority claims), and this Court also recognizes that a reduced bank account balance will reduce bank charges, nevertheless sometimes it is not until the end of the case that parties in interest and this Court can fully assess the reasonableness of the fees, including the professionals' balancing of their attempts to maximize the estate and the costs of doing so. This is not to say that it is appropriate to judge professionals' billing discretion with the benefit of things they did not know at the time. But, although the professionals themselves are aware what they know in real time, other parties in interest and this Court are not as capable of evaluating the situation until later, when the facts tend to be more broadly and fully known.
Balancing these considerations, the foregoing interim distribution appears appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricky Grayson Represented By Yelena Gurevich
Movant(s):
Danning, Gill, Diamond & Kollitz Represented By
Eric P Israel
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel Sonia Singh
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Docket 8
Continue to 12/11/18 at 11:00 a.m., with a deadline of 11/16/18 to file and serve a declaration to address the following issues. Appearances are not required on 11/6/18.
Under 11 U.S.C. 722 redemption requires that Debtor pay "the holder of [the] lien the amount of the allowed secured claim ...." Under 11 U.S.C.
506(a)(2), "If the debtor is an individual in a case under chapter 7 ..., [the] value [used to determine the secured claim] with respect to personal property ... shall be determined based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined."
Debtor's motion uses the Kelly Blue Book valuation to "Buy from a Private Party." Dkt. 8, Ex.B (emphasis added). The tentative ruling is that Debtor must provide evidence of what it would cost to purchase (not trade-in) from a retail merchant (not a private party) a vehicle of the same make, model, and condition as Debtor's vehicle.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Denise Renee Schlegel Represented By Sanaz S Bereliani
Movant(s):
Denise Renee Schlegel Represented By Sanaz S Bereliani
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
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Application for fees and expenses [Heide Kurtz, Trustee]
Docket 118
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Pedro Salcido Represented By Omero Banuelos
Trustee(s):
Heide Kurtz (TR) Represented By Jeremy Faith
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Docket 115
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Pedro Salcido Represented By Omero Banuelos
Trustee(s):
Heide Kurtz (TR) Represented By Jeremy Faith
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[Grobstein Teeple, LLP Accountants For The Chapter 7 Trustee]
Docket 117
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Pedro Salcido Represented By Omero Banuelos
Trustee(s):
Heide Kurtz (TR) Represented By Jeremy Faith
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fr. 6/7/18, 08/07/18, 9/18/18, 9/26/18, 10/23/18
Docket 41
Tentative Ruling for 11/6/18:
Appearances required. The parties should be prepared to address whether they have reached a settlement, or whether this Court should make oral findings of fact and conclusions of law on some or all issues and/or set a posttrial briefing schedule.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/23/18:
Appearances required. The parties should be prepared to proceed with trial.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/26/18:
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Appearances required. At the hearing on 9/18/18, this Court was persuaded to make this hearing a pretrial conference. This Court has reviewed the parties' joint pretrial stipulation (dkt. 58). The parties should be prepared (1) to confirm that they have reviewed Judge Bason's posted Procedures (available at www.cacb.uscourts.gov), under the "Trial practice" section, and
(2) to address scheduling the trial day.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Specially set a trial and continued status conference for 9/26/18 at 9:00 a.m., in view of the order excepting these proceedings from any automatic stay that might otherwise apply in Mr. Hill's bankruptcy case (see dkt. 56, Ex.A).
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If one or more parties assert that they are unavailable on that date, then this Court will address whether to select an alternative date. In addition, the parties should be prepared to address whether this Court should approve the pretrial order proposed by the United States Trustee (dkt. 52, 53), what evidence they expect to present, and any other matters appropriate to be addressed at a pretrial/status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 8/7/18:
Continue to 9/18/18 at 2:00 p.m., and vacate the trial that is scheduled to commence on 8/15/18 at 9:00 a.m., in view of the automatic stay arising from the filing of the bankruptcy petition of Mr. William G. Hill (Case No. 1:18-
bk-11914-VK). Appearances are not required on 8/7/18.
Analysis: First, although this Court has located authority that proceedings under 11 U.S.C. 110 are within the police and regulatory power exception to the automatic stay, that conclusion may be subject to dispute, and Mr. Hill (and the Office of the United States Trustee) have not had the opportunity to brief that issue. See In re Hernandez, 66 Collier Bankr.Cas.2d 1022 at n.9 & accompanying text (Bankr. D. Colo. 2011). See also In re Dingley, 852 F.3d 1143 (9th Cir. 2017) (civil contempt proceedings exempted from automatic stay when intended to effectuate court's public policy interest in deterring litigation misconduct).
Second, regardless whether the automatic stay applies, the tentative ruling is that continuing this matter is in keeping with the spirit of the "breathing spell" that bankruptcy is supposed to afford. This Court recognizes that the debtor may be very much in need of whatever funds could be owed to him by Mr. Hill, but any delay from the automatic stay is unlikely to last long.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Appearances required. The parties have raised a number of disputed issues, including issues of credibility (attorney Leslie Richards, Esq. blaming former attorney William G. Hill and vice versa), that appear to require an evidentiary hearing. The parties are directed to address when this Court should schedule such a hearing.
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In addition, the parties should be prepared to address whether 11
U.S.C. 110 can encompass liability against an attorney, as argued by the United States Trustee ("UST"). See dkt. 41, pp.2, 7-9, & nn.2 & 8). The parties should also be prepared to address whether this Court should grant any additional time for the UST to file additional or amended papers with respect to Ms. Richards.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Johnnie L. Fields Represented By Leslie Richards
Trustee(s):
Kathy A Dockery (TR) Pro Se
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(2) Compelling Immediate Payment
Docket 225
- NONE LISTED -
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
Starwood Retail Partners LLC Represented By Brian D Huben
The Forbes Company Represented By Brian D Huben
1:00 PM
Docket 685
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
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and Reimbursemenet of Expenses of Michael Jay Berger
Docket 71
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
Movant(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
1:00 PM
Docket 78
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
Movant(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
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Docket 52
Please see the tentative ruling for the status conference (calendar no. 6, 11/6/18 at 1:00 p.m.).
Debtor(s):
Acquiplied Assets, B.T. Represented By Stephen L Burton
Trustee(s):
Howard M Ehrenberg, Ch 7 Trustee Represented By
Asa S Hami
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Docket 1
Tentative Ruling for 11/6/18:
Appearances required.
Current issues
Debtor's motion to approve compromise (dkt. 52). There is no tentative ruling but the parties should be prepared to address the responses by Allstar and the Chapter 7 Trustee (see dkt. 61, 75) and Debtor's reply (dkt. 81).
Deadlines/dates. This case was filed on 7/30/18 and converted to chapter 7 on 10/10/18.
Bar date: 11/7/18 (see dkt. 47, 51, and tentative ruling for 10/9/18, reproduced below).
Plan/Disclosure Statement: N/A.
Continued status conference: 12/4/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 10/9/18:
Appearances required. The tentative ruling is to convert this case to chapter
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7 pursuant to 11 U.S.C. 1112(b), due to the apparent conflicts of interest of the debtor's principal, Mr. Brown, with the interests of creditors. See Motion by UST (dkt. 39), Joinder by Allstar Fin. Svcs., Inc. (dkt. 62). Although Debtor asserts (dkt. 58) that a number of issues identified by the UST have been addressed, the opposition does not adequately address the alleged conflicts of interest. In addition, the issues identified in this Court's tentative ruling for 10/9/18 (reproduced below) have not been adequately addressed. In addition, this Court's order (dkt. 47) directed Debtor not to serve a notice of bar date and instead to serve a copy of that order itself, no later than 9/7/18, but Debtor disregarded that order and served its own notice (dkt. 51) on 9/16/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 9/4/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Failure to serve order. This Court's status conference order (dkt. 9, para.5, bolded text) directed counsel for the debtor to serve all creditors with a copy of the order. Why was it not served?
Failure to comply with requirements for professionals. The debtor's status report (dkt. 45, p.4) states that neither the debtor's attorney nor any other professional intend to apply for employment because they do not intend to seek compensation during the case. That is not the test. They are required to apply for employment under 11 U.S.C. 327. In addition, the United States Trustee ("UST") has objected in its motion to dismiss (dkt. 39)
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that the person who claims to be acting as the debtor's bankruptcy attorney, Robert A. Brown, Esq., is also the debtor's CEO and General Counsel. The parties should be prepared to address the conflicts issues.
Failure to comply with Chapter 11 requirements. See the UST's motion to dismiss (dkt. 39).
Failure to comply with procedures for plan (dkt. 38) and disclosure statement (dkt. 37). As stated in this Court's status conferences order (dkt. 9), Judge Bason's posted procedures (available at www.cacb.uscourts.gov) establish procedures for any draft plan and disclosure statement. Counsel for the debtor has violated those procedures by mailing a copy of the drafts to creditors before this Court has approved such mailing.
In addition, those documents omit any meaningful liquidation analysis or disclosure of what could be paid to general unsecured creditors, instead opting for a flat 12% promised distribution (dkt. 38, at PDF pp.13-14). In addition, from the summary of assets and liabilities (dkt. 19) it appears that the debtor might have enough equity in property to pay far more than12%, depending on the total amount of unsecured claims.
Opaque "disclosures". The debtor's references to a sale of the "Marsh" property is not adequately explained. In addition, although the debtor's bankruptcy Schedule H (dkt. 1) asserts that there are no co-debtors, this Court questions whether that is so because business organizations typically have individual guarantors on any major debts.
Deadlines/dates. This case was filed on 7/30/18.
Bar date: 11/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement: TBD.
Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Acquiplied Assets, B.T. Represented By Stephen L Burton
Trustee(s):
Howard M Ehrenberg, Ch 7 Trustee Represented By
Asa S Hami
1:00 PM
Docket 5
Please see the tentative ruling for the status conference (calendar no. 10, 11/6/18 at 1:00 p.m.)
Debtor(s):
Saul Torres Bahena Represented By Michael R Totaro
Movant(s):
Saul Torres Bahena Represented By Michael R Totaro
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vs DEBTOR
Docket 35
Grant as provided below. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay will not apply if this Court adheres to other tentative rulings today. As set forth in the tentative ruling for the Status Conference (calendar no. 10, 11/6/18 at 1:00 p.m.), this Court's tentative ruling is to grant a motion to reconsider the continuation of the automatic stay under 11 U.S.C. 362(c)(3), and in that event there will be no stay; and alternatively, this Court's tentative ruling is to grant Debtor's motion to dismiss this case, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Service
This Court notes that movant Laurel Rosa, LLC ("Rosa") served very few persons, and normally a motion for relief from the automatic stay must be served on the 20 largest unsecured creditors (or a creditors' committee or its counsel, if they exist, per Rule 4001(a)(1), Fed. R. Bankr. P.). But in this case Debtor's creditor matrix includes almost no creditors (in fact, it omits Rosa), and the few creditors who are listed appear to be holders of secured claims.
Accordingly, service appears to have been adequate.
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Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order normally will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice, due to Debtor's evidence that its was his agents, rather than himself personally, who engaged in the scheme.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saul Torres Bahena Represented By Michael R Totaro
Movant(s):
Laurel Rosa, LLC Represented By Yevgeniya Lisitsa
1:00 PM
Docket 36
Please see the tentative ruling for the status conference (calendar no. 10, 11/6/18 at 1:00 p.m.)
Debtor(s):
Saul Torres Bahena Represented By Michael R Totaro
Movant(s):
Saul Torres Bahena Represented By Michael R Totaro
1:00 PM
Docket 10
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Application to employ Michael Totaro and Law Offices of Totaro & Shanahan (dkt. 5)
Deny without prejudice (or, if this case is not dismissed, continue to the same time as the continued status conference, to address the concerns raised by the United States Trustee ("UST")). Dkt. 22. Mr. Totaro's reply (dkt. 31) does not adequately explain the investor's role, connections with Debtor or any other parties in interest, or potential conflicts of interest. See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995). In addition, Local Form F 2014-1 is required (see Judge Bason's posted procedures).
Laurel Rosa, LLC ("Rosa"): motion for relief from stay (dkt. 35)
Grant under 11 U.S.C. 362(d)(1) & (4) (among other things), as set forth in calendar no. 8 (11/6/18 at 1:00 p.m.).
Rosa reconsideration motion (dkt. 27) re order continuing automatic stay (dkt. 24)
Grant, with a direction to Rosa, within seven days after the hearing, to lodge a proposed order with a copy of this tentative ruling attached, thereby incorporating it as this Court's final ruling.
Although Debtor's opposition (dkt. 30) is correct that the reconsideration motion is mostly unsupported by evidence, several points raised by Rosa can be established by judicial notice. First, the presumption of lack of good faith applies based on Debtor's failure to file case
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commencement papers in a prior bankruptcy case, and alternatively based on Debtor's lack of evidence of a substantial change in financial or personal affairs.
Second, Debtor's attempt to rebut that presumption by clear and convincing evidence - by blaming the persons to whom he went for assistance - does not include any explanation why Rosa was omitted in this case from both Debtor's creditor matrix and the proof of service of the motion to continue the automatic stay (dkt. 6), despite the fact that both Debtor and Mr. Totaro were aware that Rosa had been granted relief from the automatic stay in his prior bankruptcy. See dkt. 34, Ex.B. It is difficult to establish good faith (especially by clear and convincing evidence) when failing to notify a key creditor of this case or a critical proceeding in this case.
Note: Although the tentative ruling is to dismiss this case, that does not render moot this motion to reconsider this Court's order continuing the automatic stay in this case. That order includes a finding of good faith, which no longer appears to be appropriate, so that issue should be addressed prior to dismissal.
Motion of debtor to voluntarily dismiss Chapter 11 proceeding Grant, but only after disposition of the other matters on calendar for
today as set forth above. Counsel for Debtor is directed to lodge a proposed dismissal order within seven days after this hearing.
Deadlines/dates. This case was filed on 8/29/18.
Bar date: N/A (at the hearing on 10/2/18 this Court did not adopt the tentative ruling of setting a bar date, and if this case is dismissed then it will be unnecessary to set one).
Plan/Disclosure Statement*: N/A.
Continued status conference: N/A.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 10/2/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Reconsideration Motion (dkt. 27) re Order continuing automatic stay (dkt. 24). There is no tentative ruling.
Deadlines/dates. This case was filed on 8/29/18.
Bar date: 12/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: deadline TBD, using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/6/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saul Torres Bahena Represented By Michael R Totaro
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fr. 10/2/18
Docket 27
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the status conference (calendar no. 10, 11/6/18 at 1:00 p.m.)
Tentative Rling for 10/2/18:
Please see the tentative ruling for the status conference (calendar no. 3, 10/2/18 at 1:00 p.m.).
Debtor(s):
Saul Torres Bahena Represented By Michael R Totaro
Movant(s):
Laurel Rosa, LLC Represented By Yevgeniya Lisitsa
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#12.00 | Cont'd Status Conference re: Chapter 11 Case |
fr. 03/03/15, 03/31/15, 04/28/15, 05/26/15, 06/09/15, | |
07/07/15, 07/28/15, 09/01/15, 09/22/15, 11/17/15, 12/15/15, | |
01/19/16, 02/23/16, 03/22/16, 05/31/16, 07/19/16, 09/27/16, | |
11/29/16, 01/10/17, 04/25/17, 06/20/17, 10/17/17, 01/30/18, | |
04/10/18, 05/08/18, 06/07/18, 07/10/18, 08/07/18, 9/4/18, | |
10/9/18 |
Docket 9
Tentative Ruling for 11/6/18:
Continue to 1/8/19 at 1:00 p.m., with a brief status report due by 1/2/19. Appearances are not required on 11/6/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 335) and Status Report that includes a description of the extension of the Escrow Deadline to 12/31/18 (dkt. 337, p.4:2-8). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Continue to 11/6/18 at 1:00 p.m., with a brief status report due by 10/23/18. Appearances are not required on 10/9/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 332) and Status Report (dkt. 333). This Court
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is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Continue to 10/9/18 at 1:00 p.m., with a brief status report due by 9/25/18. Appearances are not required on 9/4/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 329) and Status Report (dkt. 330). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue to 9/4/18 at 1:00 p.m., with a brief status report due by 8/21/18. Appearances are not required on 8/7/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 325) and Status Report (dkt. 326). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Continue to 8/7/18 at 1:00 p.m. Appearances are not required on 7/10/18.
This Court has reviewed the debtor's latest filed documents, including its Monthly Operating Report (dkt. 322) and Status Report (dkt. 324). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Continue to 7/10/18 at 1:00 p.m. Appearances are not required on 6/7/18.
This Court has reviewed the debtor's latest filed documents regarding its cash flow and sale of property (dkt. 316, 317, 319, 320). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Continue to 6/7/18 at 1:00 p.m. Appearances are not required on 5/8/18.
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This Court has reviewed the debtor's status report (dkt. 313), notice of pending sale for the Broadway property (dkt. 314), and latest monthly operating report (dkt. 312). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Continue to 5/8/18 at 1:00 p.m. Appearances are not required on 4/10/18.
This court has reviewed the debtor's status report (dkt. 311) and monthly operating reports (dkt. 309, 310), and this court is not aware of other issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's status report (dkt. 304) and the notice (dkt. 307) filed by Bayview Loan Servicing, LLC ("Bayview"). The parties should be prepared to address the issues raised by those papers.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This court has reviewed the debtor's post-confirmation status report (dkt. 298) and has no issues to raise sua sponte at this time. The tentative ruling is to continue this status conference to 1/30/18 at 1:00 p.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 10/17/17 at 1:00 p.m. in view of the debtors' status report (dkt. 292). Appearances are not required on 6/20/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/25/17:
Continue to 6/20/17 at 2:00 p.m., to provide the debtors with time to seek entry of a final decree in this case, or such other remedies as may be necessary or appropriate, in view of the confirmed Joint Chapter 11 Plan (dkt. 270) and the unopposed motions to approve the compromise with Butler Capital (dkt. 277-80). Appearances are not required on 4/25/17.
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Tentative rulings").
[PRE-CONFIRMATION TENTATIVE RULINGS OMITTED]
dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
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Docket 5
Tentative Ruling for 11/6/18:
Appearances required.
Current issues. This Court has reviewed Mr. Starflinger's declaration (dkt. 62) and will address at the Status Conference Debtor's first amended plan (dkt. 61) and first amended disclosure statement (dkt. 60).
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement*: TBD.
Continued status conference: 12/4/18 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 10/9/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 57) will address at the Status Conference Debtor's proposed Plan (dkt. 55) and disclosure statement (dkt. 54).
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Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement*: This Court anticipates authorizing service of a voting package and setting related deadlines and dates, including a combined hearing on final approval of the disclosure statement and confirmation of the plan.
Continued status conference: 11/27/18 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 8/7/18:
Continue to 10/9/18 at 1:00 p.m., per the debtor's request (Status Report, dkt. 51). Appearances are not required on 8/7/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Continue to 8/7/18 at 1:00 p.m. Appearances are not required on 6/26/18.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/21/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/26/18 at 1:00 p.m., to be concurrent with other hearings in this case. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
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Docket 31
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Docket 7
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Mold issues etc. At the last hearing, this Court was informed of Debtor's efforts to address the mold issue. Has that issue been resolved?
Motion for joint administration (dkt. 82). Grant, except that, to avoid possible administrative confusion, the new caption (dkt. 82, Ex.1) should list Sergio Ramirez' case number as "2:18-bk-21263-NB" (emphasis added) rather than "2:18-bk-21263-ER."
Debtors Karla and Sergio Ramirez are directed to lodge a proposed order in each of their separate cases authorizing joint administration.
Thereafter, the orders will provide that all subsequent documents must be filed in the lead case of Karla Ramirez. The proposed orders should provide that copies of the orders must be served on all parties in interest in both cases.
Order re Sergio Ramirez. After this hearing this Court will prepare an order substantially in the form of dkt.6 (in the Karla Ramirez case) directed to Sergio Ramirez (i.e., directing him to file a status report, directing him to appear in person at a future status conference, notifying all parties in interest that this Court may take various actions at any status conference, etc.).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement: TBD
Continued status conference: 12/11/18 at 1:00 p.m. Brief status report due 12/4/18.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
At the hearing on 8/14/18 this Court was persuaded not to convert this case, and instead to continue this hearing, in view of the debtor's apparent agreements with certain key creditors. This Court has reviewed the debtor's status report (dkt. 77).
Current issues.
Mold issues etc. Has the debtor addressed the mold and any other health and safety issues?
Plan (dkt. 76) and Disclosure Statement (dkt. 75). The debtor treats tax claims from the IRS and the FTB as general unsecured claims (dkt. 75, Ex.F). The latter is listed as secured on the claims register. In addition, the claims register reflects Claim no. 4-1 by the LA County Treasurer for
$10,433.84 in alleged real estate taxes. How does the debtor propose to treat these claims?
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement: TBD
Continued status conference: 11/6/18 at 1:00 p.m. Brief status report due 10/30/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
The tentative ruling is to convert this bankruptcy case to chapter 7. Appearances are not required. After the hearing this Court will prepare the conversion order.
Current issues.
Background. The debtor's status report notes (dkt. 62, p.2:9-12) that the debtor fell behind in mortgage payments and faced a scheduled increase in monthly payments from $2,500 to $7,800. That is an extremely unfortunate circumstance, but at this point it appears that there is no way to retain the property, and attempting to do so would simply mean that the debtor and her parents would be "throwing good money after bad." The best alternative may be for the debtor to obtain her chapter 7 discharge and the "fresh start" that is one of the main purposes of the bankruptcy system.
This Court recognizes that the debtor has attempted to save the property by moving out and renting it, as well as by obtaining contributions from her parents. Unfortunately, even if the debt is bifurcated as the debtor seeks to do, the property does not appear to be able to generate positive cash flow after payments on the mortgage. See tentative ruling for calendar no. 4 (denying motion to continue automatic stay). In addition, the property appears to have substantial deferred maintenance and other problems.
Despite the efforts of the debtor and her counsel, it does not appear possible to satisfy the requirements of the Bankruptcy Code to keep the property.
Denial of motion to continue automatic stay. As noted above, this Court's tentative ruling is to deny the debtor's motion to continue the automatic stay (see tentative ruling for calendar no. 4).
Budget motion (dkt. 17, 41, 46, 50, 56). This Court granted the debtor's budget on an interim basis (dkt. 46) and orally on a final basis at the hearing on 6/12/18, but no proposed final order was lodged. In addition, since that time the debtor has filed amended bankruptcy Schedules I&J (dkt. 56) which appear to amend the proposed budget. In addition, as set forth in the tentative ruling denying the debtor's motion to continue the automatic stay, it appears that even the latest proposed budget would need to be different, to account for greater adequate protection payments in view of
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increased interest rates and in view of the urgent need to stop the mold and water intrusion issues at the property from becomming worse (see tentative ruling for calendar no. 4). For all of these reasons, the tentative ruling is that, notwithstanding this Court's prior oral ruling, the budget motion cannot be approved on a final basis; but that issue appears to be moot because of the tentative ruling to convert this case to chapter 7.
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement: N/A.
Continued status conference: N/A.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Continue to 8/14/18 at 1:00 p.m. Appearances are not required on 7/10/18.
Current issues.
Budget motion (dkt. 17, 41, 46, 50, 56). This Court approved the debtor's budget on an interim basis (dkt. 46) and orally on a final basis at the hearing on 6/12/18, but no proposed final order was lodged, and since that time the debtor has filed amended bankruptcy Schedules I&J (dkt. 56). The tentative ruling is to deem the budget motion to be amended by those latest amended Schedules I&J and approve the budget as so amended on a final basis.
Proposed order: The debtors are directed to lodge a proposed order granting the motion via LOU, within 7 days after the hearing date, and a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Other issues. This Court has reviewed the debtor's filed Status
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Report (dkt. 54). This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: Continue to the date set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 17, 29, 41). Grant the budget motion on a final basis (i) as deemed amended by the latest bankruptcy Schedules I and J (dkt. 41) and (ii) subject to a requirement that, no later than 6/19/18, the debtor must file a declaration showing how it is reasonable to estimate self employment taxes of only $100 per month (see dkt. 41, Sch.J, line 16) or, alternatively, file a declaration establishing a higher dollar amount and lodge a proposed order amending the approved budget accordingly.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and include a provision that the budget is deemed amended by dkt. 41. See LBR 9021-1(b)(1)(B).
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Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 7/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Amended Schedule I (dkt. 26). Bankruptcy Schedule I, paragraph 8a, requires a separate statement for any rental property showing gross receipts, ordinary and necessary expenses, and net income. The debtor has not complied. Why not?
Budget motion (dkt. 17, 29). Nothwithstanding the foregoing, this Court has reviewed the cash collateral motion (dkt. 28), which appears to set forth the gross receipts, expenses, and net income of the subject property. Based on the presumption that this is included in the budget for which the debtor seeks approval, the tentative ruling is to grant the budget motion as amended (dkt. 29), on an interim basis, subject to a final hearing at the same date and time as the continued status conference set froth below. By no later than 6/8/18, the debtor must (i) correct the above-referenced omission from
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bankruptcy Schedule I and the budget motion, (ii) provide notice of the final hearing on this motion via U.S. Mail to all parties in interest, and (iii) file a proof of service.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron Kevin Tang
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Docket 30
Tentative Ruling for 11/6/18:
Continue to 12/4/18 at 1:00 p.m., with a brief status report due by 11/20/18. Appearances are not required on 11/6/18.
This Court has reviewed the Debtor's monthly operating report (dkt. 86). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 10/9/18:
Appearances required.
Current issues
Budget motion (dkt. 49). Without prejudice to any later assertion by any party in interest that the debtor's proposed expenses are not in fact "ordinary course," the tentative ruling is to grant the budget motion based on the debtor's declaration (dkt. 76) in response to the questions raised in this Court's order (dkt. 69).
Employment application for Tenina Law, Inc. (dkt. 50, 52, 53). Proposed counsel for the debtor should be prepared to address whether the declarations (dkt. 77, 79) in response to this Court's order (dkt. 67) can be interpreted broadly enough to address all "connections" that are required to
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be disclosed under Rule 2014 (Fed. R. Bankr. P.).
For example, this Court's order (dkt. 67, p.3:6-7) asked "have there been" - i.e., in the present or past - any economic or business or personal transactions between the Funder/Donor and the debtor. In response, the debtor declares (dkt. 67, para. 7), "[m]y Donor does not have any business or economic transaction with me ...." (Emphasis added.)
Another concern in that both proposed counsel and Debtor appear to be under the mistaken impression that Debtor could, if necessary, waive conflicts. That is not possible, because Debtor is acting not just for herself but as a trustee for the benefit of all creditors.
Another concern is that there is no indication that Donor has been fully apprised of this Court's concerns.
The tentative ruling is that, before this Court issues any order approving the application, counsel must file Debtor's supplemental declaration (i) quoting Rule 2014 in full, (ii) confiming that there are no "connections" within the meaning of that Rule, except for Donor's friendship with Debtor, (iii) confirming that Debtor understands that (pursuant to this Court's conclusion of law) any conflicts that might turn out to exist cannot be waived, and (iv) confirming that Debtor has provided to Donor a copy of this Court's order (dkt. 67) and the responsive declarations (dkt. 77, 79, and the declaration described in this paragraph). Subject to the foregoing, and the terms of the stipulation with the United States Trustee (dkt. 58), the tentative ruling is to approve the application.
Proposed orders. Whatever this Court's rulings on the foregoing issues, Debtor is directed to lodge proposed orders via LOU within 7 days after the hearing date, and attach a copy of these tentative rulings, thereby incorporating them as this Court's final rulings, except as modified on the record. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 5/29/18 and converted from chapter 13 on 8/8/18.
Bar date: 11/9/18 (dkt. 55), timely served (dkt. 59).
Plan/Disclosure Statement*: file by 12/23/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/6/18 at 1:00 p.m. No written
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status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 9/4/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 5/29/18 and converted from chapter 13 on 8/8/18.
Bar date: 11/9/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 12/23/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Grant application for hearing on shortened time (see evidence of service, dkt. 31, 33). There is no tentative ruling on the motion to vacate dismissal of this chapter 13 case with a 180-day bar, so as to permit the debtor to pursue chapter 11 relief either in this case or by filing a new case. The parties should be prepared to address any opposition at the hearing. See Order Shortening Time (dkt. 28). Appearances required.
Key documents reviewed (in addition to motion papers): Application for order shortening time (dkt. 26) and evidence of service (dkt. 31, 33).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
appropriate for disposition at this hearing.
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
Movant(s):
Nandini Mariwala Savin Represented By Alla Tenina
Trustee(s):
Kathy A Dockery (TR) Pro Se
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fr. 10/9/18
Docket 32
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the status conference (calendar no. 19, 11/6/18 at 1:00 p.m.)
Revised Tentative Ruling for 10/9/18:
Grant the motion, as revised (dkt. 32, revising dkt. 27) on an interim basis, subject to the conditions set forth below, with a final hearing on 11/6/18 at 1:00 p.m., and a deadline of 10/12/18 for the movant to file and serve a notice of the final hearing. Appearances required.
Special conditions
Local Form F 4001-2.STMT.FINANCE. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) require the use of this form. In any event, the motion does not follow the format required by Rule 4001(b)(1)(B), (c)(1)(B) & (d)(1)(B) (Fed. R. Bankr. P.) whereas the Local Form does. The tentative ruling is to set a deadline of 10/12/18 to file and serve this form.
Challenges to perfection, validity, extent of Bank's liens. The tentative ruling is, at least on an interim basis, to authorize the use of Bank's cash collateral subject to parties other than the debtor having a period of 90 days from the latter of (a) the date of service of the motion or (b) the appointment of any committee or trustee to assess the validity, priority, and extent of the Bank's liens. Compare Stipulation (dkt. 32, Ex.2, section 8(b)) (later of 10/31/18 or 45 days following appointment of trustee or committee).
Service of the motion. The proof of service (dkt. 32, last two pages) reflects service on the persons listed in Rule 4001(b)(1)(C) & (d)(1)(C), but the parties should be prepared to address the source of the addresses for the
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purported secured creditors.
506(c). The tentative ruling is that the waiver of rights under 11
U.S.C. 506(c) is inapplicable to emergency situations in which Debtor lacks enough time to seek authorization to use cash collateral outside of the stipulation. For example, if the debtor were to expend funds putting out a fire that would damage Bank's non-cash collateral, that might be compensable under section 506(c) notwithstanding the lack of prior authorization from Bank to expend cash collateral in that manner.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
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Disclosures/access. The debtor is directed to provide, upon
such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the
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Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
Movant(s):
State Bank of India (California) Represented By Christopher D Crowell
1:00 PM
fr. 10/9/18
Docket 27
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the status conference (calendar no. 19, 11/6/18 at 1:00 p.m.)
Tentative Ruling for 10/9/18:
Please see the tentative ruling for the proposed stipulation regarding the use of cash collateral (calendar no. 6, 10/9/18 at 1:00 p.m.).
Debtor(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
Movant(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
1:00 PM
Docket 14
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
MORs (dkt. 44, 45)
MOR1 (for August, 2018) shows an ending balance of negative
$4,549.03. MOR2 (for September 2018) shows an ending balance of negative $4,074.81. Both MORs also show negative postpetition accounts receivable. What does that mean?
Both MORs were also filed late. They were due middle of the month following the reporting period, and this Court's adopted tentative ruling for 10/9/18 directed that the defective August MOR be cured by 10/15/18 but it and the September MOR were not filed until 10/31/18.
Are the (untimely) MORs inaccurate? How can parties in interest and this Court rely on them for current information? If they're accurate, they appear to show losses, or at least an inability to generate profits that would be needed to reorganization.
In view of all the foregoing, should this case be converted or dismissed?
Insider compensation
Debtor's notices of insider compensation (dkt. 46, 47) were not served until 10/24/18, even though this Court's adopted tentative ruling for 10/9/18 directed service no later than 10/12/18. Why?
Meanwhile, although Debtor's principal Neel Viradia declares under penalty of perjury that no unauthorized insider compensation has been paid (dkt. 45, p.16, answer #2), the breakdown of payroll in the MORs apparently shows otherwise (e.g., dkt. 45, p.5, lines 1-2). The form itself states (e.g., dkt.
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47, p.2, bottom of page): "[T]his notice ... must be filed and served fifteen days before any pay out of compensation ...." What consequences should follow from Debtor's apparent violation of that limitation?
Employment (dkt. 32, superseded by amended application, dkt. 42)
The amended application does not specify whether the $10,000 fee already paid by Batuk Viradia (and the filing fee), or the $2,000 he has committed to pay, are loans to Debtor, or gifts, or equity investments, or something else. Nor has he filed a declaration confirming that he understands that proposed counsel's sole loyalty must be to Debtor (not to Mr. Viradia), and that has been informed that there might be conflicts of interest and he may wish to seek separate counsel (e.g., conflicts could exist if Mr. Viradia received any preferential payments or other avoidable transfers, or if Mr. Viradia would prefer that Debtor take a course of action that is not in the best interests of creditors).
More generally, although payment of a retainer by a third party is not outright prohibited, it is fraught with ethical concerns. See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena
Corp., 63 F.3d 877 (9th Cir. 1995).
The tentative ruling is that, if this case is not dismissed or converted, the employment application must be continued to the date of the continued status conference (set forth below) with a deadline of 11/13/18 for Debtor to file Mr. Viradia's declaration, with a copy of this tentative ruling attached as an exhibit, addressing the issues described above.
Cash collateral. If this case is not dismissed or converted, the tentative ruling is to authorize the use of cash collateral on a final basis, on the same terms as the interim authorization (dkt. 37).
Deadlines/dates. This case was filed on 8/2/18.
Bar date: 12/11/18 (order, dkt. 35). Although the order was not timely served (see dkt. 41), the tentative ruling is that the confusion of setting yet another bar date would outweigh the benefit, and that this Court can address any prejudice from shortened notice when and if anyone files a late claim and seeks to have the claim treated as timely.
Plan/Disclosure Statement*: TBD.
Continued status conference: If this case is not dismissed or
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converted, the tentative ruling is to continue this status
conference to 12/11/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
Revised Tentative Ruling for 10/9/18:
Appearances required.
Current issues.
Cash collateral. The tentative ruling is to authorize the use of cash collateral as set forth in the tentative ruling for calendar no. 6 (10/9/18 at 1:00 p.m.).
Insider compensation. Local Bankruptcy Rule ("LBR") 2014-1(a) requires a notice and opportunity to object before any insider compensation is paid. But no such notice has been filed, and Debtor's Monthly Operating Report ("MOR") for the month ending 8/31/18 reflects payments to each of two insiders. Dkt. 34, at PDF p.8. The tentative ruling is to direct Debtor to serve the notice using the local form no later than 10/12/18.
Bar date. On 9/5/18 this Court entered its "Order Setting Bar Date: November 9, 2018; and Directing Service by Debtor." Dkt. 24. The debtor failed to serve that order. Why? The tentative ruling is to issue an amended order setting a bar date as set forth below.
MOR (dkt. 34). The MOR appears to be incomplete. For example, it refers to multiple accounts but appears to provide only a combined report; many of the entries are vague or have no description; and page one includes a reference to "Non DIP personal checking (see attached letter)" but no letter or any other explanation is attached. The tentative ruling is to set a deadline of 10/15/18 to file an amended MOR correcting these and any other deficiencies.
Employment (dkt. 25). As highlighted by the objection of the United States Trustee ("UST") (dkt. 28), the parties should be prepared to address
(a) the proposed $12,000 flat fee under 11 U.S.C. 328 and (b) the source of the "loan" for $10,000 of that fee (dkt. 25, p.8) and the source of the remaining $2,000 plus the filing fee.
Deadlines/dates. This case was filed on 8/2/18.
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Bar date: See above. In view of Debtor's failure to serve the order (dkt.24), the tentative ruling is to issue an amended order setting a bar date of 12/28/18 and directing the debtor to serve that order no later than 10/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD.
Continued status conference: 11/6/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 9/4/18
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 8/2/18.
Bar date: 10/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 11/1/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
1:00 PM
fr. 10/16/18
Docket 20
Tentative Ruling for 11/6/18:
See tentative ruling for the Status Conference (calendar no. 22, 11/6/18 at 1:00 p.m.).
Tentative Ruling for 10/16/18:
Grant the motion (docket no. 50) on an interim basis, subject to the conditions set forth below, with a final hearing on 11/6/18 at 1:00 p.m., and a deadline of 10/18/18 for the movant to file and serve a notice of the final hearing.
Appearances are not required on 10/14/18.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property
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(pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
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Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
1:00 PM
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
Movant(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
1:00 PM
11 U.S.C. Sec. 1115
fr. 10/9/18
Docket 11
Tentative Ruling for 11/6/18:
See tentative ruling for the Status Conference (calendar no. 22, 11/6/18 at 1:00 p.m.).
Tentative for 10/16/18
Grant on an interim basis, with a continued hearing on 11/6/18 at 1:00 p.m., and a deadline 10/23/18 for the debtors to file their declarations addressing
(1) whether their charitable contributions of $703/mo. are consistent with past levels of charitable giving (with attached evidence) and (2) how they will turn their Yorkshire Way rental property into a cash-flow-positive property. Appearances are not required on 10/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
1:00 PM
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
Movant(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
1:00 PM
Docket 26
Appearances required by counsel for the debtor and by Debtors themselves.
Current issues
Status report (dkt. 43, 45)
Debtors have not used the Local Form, which is mandatory in this case (see Judge Bason's posted procedures, available at www.cacb.uscourts.gov). The tentative ruling is to set a deadline of 11/13/18 to file the form and serve it on the United States Trustee.
Motion to Employ Debtors' Counsel (Dkt. 18)
Debtors have not adequately addressed the issues in this Court's interim order (dkt. 39). Although proposed counsel declares (dkt. 47) that he has "learned" (from unspecified hearsay) that Debtors' relatives have funded the $15,000 retainer as a gift, there is no declaration from the two alleged donors confirming this, and confirming all of their "connections" with all parties in interest and their attorneys and accountants (see dkt. 39, section 6.(a)), and their informed consent to potential or actual conflicts (id., sec. 6.(c)), and Debtors' informed consent (id., sec. 6.(d)). The tentative ruling is to continue this matter to the same time as the continued status conference (see below) and set a deadline of 11/13/18 to file appropriate declarations and serve them on the United States Trustee.
(c) MOR1 (Sept., 2018, dkt. 36)
Debtors report that they spent $1,350.43 in cash, with no breakdown and just a vague description about "personal expenses," "charitable contributions," etc. The tentative ruling is that any proposed order authorizing the proposed budget must include a prohibition on Debtors spending more than $50 cash on any one item or $250 cash in the aggregate per month without attaching photocopies of receipts.
Several insurance policies have expired or are about to (see dkt. 36, at PDF p.16). What are Debtors doing about that?
(d) Motion to Use Cash Collateral (dkt 20)
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First, Debtors failed to lodge a proposed order authorizing the use of
cash collateral on the terms set forth in the adopted Tentative Ruling for 10/16/18 (see calendar no. 20, 11/6/18 at 1:00 p.m., which includes a copy of that earlier tentative ruling). The tentative ruling is to set a deadline of 11/13/18 to lodge that proposed order, with a copy of that tentative ruling attached.
Second, the original motion appears to have been superseded by an amended motion, which has not been separately filed and served but instead is attached as an exhibit to a supplemental declaration. See dkt. 29, Ex.B. The tentative ruling is to set a deadline of 11/13/18 to file and serve that motion, which will be heard at the same date and time as the continued status conference (see below).
Third, the tentative ruling is that no order granting Debtors' motions regarding cash collateral shall be construed as endorsing the statements to which creditor Poser Investments, Inc. objects. See dkt. 23. Debtors are directed to make this clear in their proposed orders.
(b) Motion for Order Approving a Budget (Dkt. 11)
Grant on an interim basis, with a continued hearing at the same time as the continued status conference (see below). The tentative ruling is that Debtors' (late-filed) declaration (dkt. 29 & Ex.A) has adequately addressed this Court's concerns about charitable donations.
Deadlines/dates. This case was filed on 9/12/18.
Bar date: 1/11/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 12/18/18 at 1:00 p.m., brief status report due12/11/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
1:00 PM
Docket 18
Please see tentative ruling in status conference (calendar no. 22, 11/6/18 at 1:00 p.m.).
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
1:00 PM
Docket 1
Tentative Ruling for 11/6/18:
Continue to 12/11/18 at 1:00 p.m., with the anticipation that such continued Status Conference will go off calendar once Debtors have lodged a proposed order for a final decree and this Court has issued such order. See dkt. 168,
169. Appearances are not required on 11/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Continue as set forth below. Appearances are not required on 10/9/18.
This Court has reviewed the debtors' latest filed documents, including the Status Report (dkt. 166) filed 9/24/18 in which debtors anticipated (i) completing payments by 10/25/18 and (ii) filing a motion for discharge thereafter. This Court is not aware of issues that would warrant a status conference at this time, but the Court is setting a deadline for the filing of a status report, as set forth below, for the debtors to apprise the Court of any other developments regarding this case and its final disposition.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
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Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 11/6/18 at 1:00 p.m., brief
status report due by 10/23/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Continue as set forth below. Appearances are not required on 9/4/18.
This Court has reviewed the debtors' latest filed documents, including the Status Report (dkt. 163) filed 7/10/18 in which debtors anticipated (i) completing payments by 8/9/18 and (ii) filing a motion for discharge thereafter. This Court is not aware of issues that would warrant a status conference at this time, but the Court is setting a deadline for the filing of a status report, as set forth below, for the debtors to apprise the Court of any other developments regarding this case and its final disposition.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 10/9/18 at 1:00 p.m., brief
status report due by 9/25/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Continue as set forth below. Appearances are not required on 7/17/18.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 9/4/18 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Service of voting package. The proof of service (dkt. 140) states that the voting package has been served on "Secured and Twenty Largest Unsecured Creditors." (Emphasis added.) The voting package should have been served on all creditors. Is the proof of service in error? If so, the
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tentative ruling is to set a deadline of 4/11/18 for the debtor to file a corrected proof of service. If not, counsel for the debtor should be prepared to address
(i) the dates and procedures for re-balloting and a continued hearing and (ii) not charging attorney fees for correcting this issue.
Disclosure statement (dkt. 134) and plan (dkt. 135), and motion to modify plan (dkt. 142). The debtor has not filed any ballot summary. If sufficient ballots have been received to vote in favor of confirmation by the requisite majorities then the tentative ruling is to approve the disclosure statement on a final basis, grant the motion to modify the plan, and confirm the plan as modified. All of the foregoing is contingent, however, on the debtor filing a sufficient ballot summary no later than 4/11/18.
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 135)/Disclosure Statement (dkt. 134). See above.
Post-confirmation status conference: 7/17/18 at 1:00 p.m. Status report due 7/9/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Plan (dkt. 127) and Disclosure Statement (dkt. 126).
Impairment - Class 2B. The Plan lists Class 2B as
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unimpaired - is it?
Impairment - Class 4A. The Plan does not specify whether Class 4A is impaired.
DIP Financing. Class 2C appears to consist of the debtor's contemplated postpetition DIP borrowing (dkt. 111, 121). First, classes under the Plan are reserved for prepetition debts, whereas repayment of postpetition DIP financing should be reflected in cash flow projections (Ex.C) (this is not just an academic issue: for example, Classes vote; DIP lenders do not).
Second, Endnote 2C (in Ex.H) appears to relate to this "Class" of DIP fiancing, and it appears to state that the terms of that financing are unknown ("Debtors will have full and accurate loan information as the loan is processed"). The debtors' counsel must address at the hearing whether there is any reason why the Plan cannot be updated to reflect the actual financing terms, which would eliminate the need for any such Endnote.
Stipulation with US Bank. The Plan should attach a copy of the Stipulation (dkt. 124) with creditor U.S. Bank N.A. (as trustee); Wells Fargo Home Mortgage as servicer (collectively, "US Bank"), as it may be modified (see below re possible amendments to that Stipulation). See dkt. 129 (limited objection of US Bank).
US Bank's concerns (dkt. 129). This Court's posted procedures (available at www.cacb.uscourts.gov, under Judge Bason) provide in part:
§ 362: Automatic Stay. (1) Stipulations. Generally, the judge will not approve a stipulation for relief from stay/adequate protection order (“APO”) that purports to be automatically effective ... because there might be equity in the property [Emphasis altered.]
Consistent with this limitation, US Bank agreed to an Adequate Protection Order ("APO") which does not provide for any automatic termination of the automatic stay. Instead it provides (in the APO attachment, at paragraph 6.b.) that in the event of a default:
[US Bank] may file and serve a declaration under penalty of perjury specifying the default, together with a proposed order terminating the stay, which the court may grant without further notice or hearing.
More recently, however, US Bank entered into its Stipulation with the debtors (dkt. 124) which not only includes the above-quoted language about
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what will happen in the event of a pre-confirmation default but goes on to add another clause. It states:
5. [US Bank] may file and serve a declaration under penalty of
perjury specifying the default, together with a proposed order Terminating the Automatic Stay, which the Court may grant without further notice or hearing, and Creditor (and/or its servicer) may commence any and all action necessary to obtain complete possession of the Subject Property without further notice,
order, or proceeding of this Court. [Emphasis added.] US Bank argues (dkt. 129, p.6:3-12) that this language in the
Stipulation was "taken from" the APO (para. 6.b.), but this is not quite accurate: the emphasized language has been added. Does that additional language mean anything? US Bank now appears to argue that it means nothing - that "the intent was simply to maintain the status quo like it is under the APO" (dkt. 129, p.6:6).
This Court agrees: the emphasized language appears to be surplusage; but unfortunately it is arguably subject to a different interpretation. Because it is unusual for parties to add meaningless language to their stipulations, the emphasized language arguably could be read to mean that US Bank could "commence" all actions necessary to foreclose without any order of this court.
Because of this (and other) ambiguities in the Stipulation this Court added the following caveat in its order approving the Stipulation:
... notwithstanding anything in the Stipulation to the contrary, the automatic stay will not automatically terminate upon a default or conversion of this case except as to Debtors (i.e., no automatic termination as to the bankruptcy estate, so as to preserve any equity that might then exist in the property for the benefit of other creditors) [Dkt. 128, p.2:5-8, emphasis in original]
US Bank now requests "that the Order [approving the Stipulation] be amended to clarify that any pre-confirmation default shall be in accordance with the [Stipulation] at paragraph 5, or in the alternative, pursuant to the existing APO, paragraph 6(b)." Dkt. 129, p.6:10-12. This Court believes the simpler solution - both in this case and in all future cases - would be to delete the surplus language in paragraph 5 of the Stipulation. US Bank's counsel should be prepared to address whether they will agree to delete the surplus language in paragraph 5 of the Stipulation in this case and in all future
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stipulations in any case before this Court.
Similarly, paragraph 13 of the Stipulation ends by stating that in the event the debtors' case is dismissed or converted then not only shall US Bank retain its lien securing the full dollar amount it is owed (less any payments received) but also "the Automatic Stay shall be terminated without further notice, order or proceeding of the Court." (Emphasis added.) US Bank has now agreed to delete this emphasized language. See dkt. 129,
pp.5:26-6:2. Again, US Bank's counsel should be prepared to address whether they will delete this language in all future stipulations in cases before this Court.
Another concern raised by US Bank is that this Court's language in the order approving the Stipulation (quoted above) appears to limit paragraph 6 of the Stipulation, which provides that upon confirmation of debtors' chapter 11 plan "the Automatic Stay shall be deemed terminated as to the Debtors and the estate" and US Bank can pursue its contractual remedies under the loan documents "without further notice, order, or proceeding of this Court." Dkt.
124, p.4:12-18. This Court did not intend to override that provision - the tentative ruling is that upon confirmation of a chapter 11 plan it is entirely appropriate to provide that the automatic stay no longer applies because then the parties have a revised contractual relationship - so US Bank is correct that the order approving the Stipulation is overbroad to the extent that the language added by this Court affects paragraph 6 of the Stipulation.
Based on all of the foregoing, the tentative ruling is that if US Bank will agree to amend its Stipulation in paragraphs 5 and 13 as set forth above (to delete the language about automatic termination of the automatic stay), and leave paragraph 6 unchanged, this Court will approve that Stipulation without the modification that is included in the current order approving the Stipulation. The debtor will need to attach the amended Stipulation to the Plan.
Note: The parties might wish to take the opportunity to review the Stipulation for any other provisions that would benefit from revision. For example, this Court notes that paragraph 13 of the Stipulation starts by providing that "[t]he terms of this Stipulation are contingent upon Debtors' confirming a Chapter 11 Plan." Dkt. 124, p.6:8-8. Read literally this would mean that the Stipulation's terms regarding pre-confirmation defaults (para. 5) are contingent upon confirmation, which makes no sense. Other provisions similarly do not appear to be intended to be contingent on confirmation (but it
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is up to the parties to decide if they wish to clarify such issues).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt. 127)/Disclosure Statement (dkt. 126)*: 2/27/18 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference, with a revised stipulation with US Bank attached, and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 4/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue this status conference to 2/13/18 at 1:00 p.m. Appearances are not required on 1/23/18.
Reasons: (a) the debtors' apparent need to amend the proposed plan in view of the recent withdrawal of their objection to the prior claim of the Internal Revenue Service ("IRS") in view of the IRS' amended claim (see dkt. 119);
the debtor's failure to file a brief status report (due 1/16/18 per the adopted tentative ruling for the 11/7/17 hearing, reproduced below); and
the inability of the Office of the United States Trustee ("UST") to appear (or perhaps even to analyze whether it should appear) because of the
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shutdown of much of the federal government.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Continue to 1/23/18 at 1:00 p.m. to address the following issues. Appearances are not required on 11/7/17.
Reasons: This court is continuing the hearing in light of the response filed by the IRS (dkt. 105) and because (1) if the dollar amount owed to the IRS changes then changes also will be needed to the amended plan (dkt. 107) and amended disclosure statement (dkt. 106) and (2) although the debtor correctly deleted Endnotes 2, 2A, 2B and 2C from Exhibit H, the debtor forgot to delete the references to those (non-existent) endnotes on Exhibits A and E. No later than 1/16/18 the debtor is directed to file an amended plan to cure these issues, if possible, or alternatively a very brief status report (e.g., one or two sentence).
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/19/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Monthly Operating Report (dkt. 94). What is the $700 transfer for 8/31/17 (at p.4) entitled "money owed"? The debtor reports one missed
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payment to Wells Fargo in the amount of $2,167.68 (at p.10), as against onl y
$2,398.12 in her rental property account (p.11) and $1,404.57 in her personal account. Is the debtor losing money? Can the debtor propose a feasible plan of reorganization?
Plan (dkt.92) /Disclosure Statement (dkt. 91). (i) These documents are not signed by the debtors ("/s/" typed signatures are only permitted for limited categories of persons, such as registered CM/ECF users). (ii) The Disclosure Statement contemplates claim objections (dkt. 91, Ex.H, Endnotes 1-2). Why have these issues not been resolved by now? (iii) The Disclosure Statement's Endnotes 2A, 2B, 2C and 5 repeat (and/or misstate) the terms of the Plan. Those endnotes should be deleted. (iv) The Disclosure Statement's Ex.C (income/expenses) is divided into two periods, but the income and expenses appear to be identical in each period. Why should this not be a single period?
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (dkt. 77, timely served dkt. 84).
Plan (dkt.92) /Disclosure Statement (dkt. 91)*: 10/24/17 deadline to file amended documents.
Continued status conference: 11/7/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Status Report. The debtor is using an outdated form. The current version is Local Form F 2081-1.1.CH11.STATUS.RPT.
Cash collateral motion (dkt. 30). Grant on a final basis, on the
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same terms as in the interim order (dkt. 58).
Deadlines/dates. This case was filed on 2/27/17 and converted from chapter 13 on 4/28/17.
Bar date: 8/24/2017 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/5/17 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee).
Continued status conference: 9/19/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
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fr. 7/11/17, 9/12/17, 11/7/17, 12/12/17, 1/23/18, 02/13/18, 3/20/18, 4/17/18, 5/1/18, 08/07/18
Docket 1
Debtor(s):
Jeffrey Charles Hatfield Represented By Eliza Ghanooni Sheila Esmaili
1:00 PM
Docket 52
Please see the tentative ruling for the status conference (calendar no. 27, 11/6/18 at 1:00 p.m.)
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
Movant(s):
THE BANK OF NEW YORK Represented By Todd S Garan
1:00 PM
Docket 7
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Wells Fargo. What progress has been made in negotiation with secured creditor Wells Fargo Bank, N.A. (Class 2B in the debtor's draft Plan, dkt. 47)?
BONY/Mellon. The tentative ruling is to approve the Bank of New York Mellon Stipulation (dkt. 52).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement (dkt. 46, 47)*: See above.
Continued status conference: 12/11/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 10/16/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to discuss what progress has been made in negotiation with secured creditor Wells Fargo Bank, N.A. (Class 2B in the debtor's draft Plan, dkt. 47). This Court is aware of the motion to approve the stipulation with the holder of Class 2A claims, Bank of New York Mellon (the "Mellon Stip," dkt. 52). The tentative ruling is to move the Mellon Stip hearing from 11:00 a.m. to 1:00 p.m., and continue this status conference to the same date and time, with no written Status Report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Appearances required.
Current issues. This Court has reviewed the debtor's draft plan (dkt. 47) and disclosure statement (dkt. 46) and this Court has no issues to raise sua sponte. Has the debtor had any negotiations with secured creditors? Is it more appropriate to allow additional time for such negotiations, or to authorize the debtor to mail a voting package to all parties in interest and set a combined hearing on final approval of the disclosure statement and confirmation of the plan for the same time and date as the continued status conference set forth below?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement (dkt. 46, 47)*: See above.
Continued status conference: 10/16/18 at 1:00 p.m. No written
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status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue as set forth below. Appearances are not required on 8/7/18.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 9/4/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see
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www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. The debtor's proofs of service continue to be defective. Elizabeth Cruz declares that she has served the "PROOF OF SERVICE" itself, not the underlying orders. See dkt. 20 at PDF p.2 and dkt. 31 at PDF p.2.
At the hearing counsel is directed to explain why the proofs of service are defective, and what steps will be taken to correct this issue so that it no longer occurs. The deadline is 6/19/18 to file further amended proofs of service of both orders (the order setting principal status conference etc. at dkt. 6, and the bar date order at dkt. 23).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). See above.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/7/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 13). Counsel must address:
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Income as of petition date or current? The debtor has filed
an amended bankruptcy Schedule I (dkt. 30). Is that actually intended to be a decaration of postpetition income, or a correction of the debtor's income as of the petition date?
Amended budget motion? Should an amended budget motion needs to be filed and served, or is such notice unnecessary and should the budget be deemed amended, in view of what appears to be an increase of approximately $168 in the debtor's monthly income (compare dkt. 13 at PDF p.8, debtor's personal income of $2,800, with dkt. 30, line 7, debtor's personal income of $2,968)?
Cash collateral motion (dkt. 12). Grant on a final basis, on the same terms as the interim order (dkt.24).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). Note: Timely served? Per the proof of service (dkt. 26, the "POS") the debtor served the POS itself on creditors. Presumably the debtor means that she served the order on creditors (not the POS), but the debtor is directed to file an amended POS saying so, no later than 5/3/18.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
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Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Failure to serve order. This Court's order setting this status conference (dkt. 6) directed the debtor to serve a copy of that order on all parties in interest no later than 14 days prior to this status conference. No proof of service appears on the docket. The tentative ruling is to set a deadline of 4/11/18 for the debtor to effect such service, with a caution to counsel that in future such failure may result in sanctions.
Budget motion (dkt. 13). Grant on an interim basis, with a final hearing on the same date at the continued status conference set forth below.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
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Adv#: 2:17-01503 Wellgen Standard LLC v. Maximum Legal (California), LLP et al
Docket 61
- NONE LISTED -
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
Richard Pachulski Represented By James KT Hunter
Movant(s):
Wellgen Standard LLC Represented By Faye C Rasch Jeffrey I Golden
Plaintiff(s):
Wellgen Standard LLC Represented By Faye C Rasch
2:00 PM
Trustee(s):
Jeffrey I Golden
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Docket 219
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court has reviewed the latest papers filed by Debtor (dkt. 225) and Regency (dkt. 229). The tentative ruling is (1) to direct that the payments Regency previously applied to attorney fees and costs be re-characterized as Plan payments, but also (2) to require Debtors to pay such attorney fees ($750.00) and costs ($1,167.00) no later than 1/31/19. The parties also must be prepared to address whether there are any other dollar amounts allegedly owing (e.g., additional attorney fees or costs).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (1) whether any deficiencies in following the Local Bankruptcy Rules ("LBR") regarding notice of this hearing have caused any prejudice; and (2) whether this Court should reopen and then dismiss this case, or alternatively, issue an order to show cause ("OSC") or order other
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remedies for non-compliance with the parties' stipulation (dkt. 209) and the order approving it (dkt. 211).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rolando Verdecia Represented By Michael J Jaurigue Nam H. Le
Elaine Le Ryan A. Stubbe
Joint Debtor(s):
Ivonne Verdecia Represented By Michael J Jaurigue Nam H. Le
Elaine Le Ryan A. Stubbe
Movant(s):
Regency centers, LP Represented By
Ernie Zachary Park
2:00 PM
fr. 8/2/18, 10/02/18
Docket 113
Debtor(s):
Gloria Elisa Galvan Represented By Michael E Clark Nancy B Clark Barry E Borowitz
Movant(s):
Gloria Elisa Galvan Represented By Michael E Clark Michael E Clark Nancy B Clark Nancy B Clark Barry E Borowitz Barry E Borowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
Eric C. Schwettmann as Special Counsel fr. 9/4/18
Docket 490
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 461
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the status conference (calendar no. 6, 11/6/18 at 2:00 p.m.).
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the status conference (calendar no. 4, 9/4/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18
Docket 1
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
This Court has reviewed the status reports filed by Debtor (dkt. 700) and the Agent (dkt. 701).
Expand Kaplan Employment (dkt. 461, 480, 497, 505, 534, 575, 576). There is no tentative ruling, but Agent Dean Rallis should be prepared to apprise the Court of his current position on this motion.
Further extension of exclusivity period (dkt. 685, 694, 695). Grant extension of the exclusivity periods to 3/15/19 to file a plan and 5/15/19 for a plan to be accepted under 11 U.S.C. 1121(c)&(d).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD.
Continued status conference: 1/29/19 at 2:00 p.m., with a brief
status report due 1/15/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Appearances are not required on 9/4/18.
Current issues.
Dissolution of "Oh Happy Day" (dkt. 544, 579, 583, 602). Grant, provided that all assets (tangible or intangible) in which Oh Happy Day, LLC currently has an interest must continue, after dissolution of that entity, to be administered by the Agent (to the full extent of any interest the debtor has in such assets). See Term Sheet (dkt. 547), section 6 (defining Agent Assets).
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Employment of Ballard, Rosenberg firm/Schwettmann as Special Counsel (dkt. 490, 532, 533, 546, 582). Continue to the same date and time as the continued status conference (set forth below), for the reasons set forth in the responses (dkt. 546, 582). In addition, no later than 10/2/18 the debtor is directed to file a supplement clarifying whether the proposed employment is of Mr. Schwettmann individually or his firm.
Expand Kaplan Employment (dkt. 461, 480, 497, 505, 534, 575, 576). Continue to the same date and time as the continued status conference (set forth below), for the reasons set forth in the latest documents (dkt. 575, 576).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD.
Continued status conference: 10/16/18, with a brief status report due 10/9/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
This court anticipates issuing or posting a tentative ruling at a later time.
Tentative Ruling for 8/3/18:
Appearances required. The tentative rulings are set forth below. In addition, the tentative ruling is to set a continued status conference on 8/16/18 at 10:00 a.m., or such alternative time as may be ordered at the hearing.
Current issues.
Motion to Confirm Dean Rallis as Agent (dkt. 536). Grant (approve the appointment of Dean Rallis, Esq. as Agent) under the Term Sheet, as amended (see below), and subject to the provisions of this Court's order approving the settlement (dkt. 528, paragraphs 3, 4, and 6-8). The tentative ruling to grant this motion is based on the representation in the motion (dkt. 536, p.9:5-9) that the parties who objected/reserved their rights to object have now consented to the appointment of Mr. Ralis. (This Court disregards the invective, id. n.3 & accompanying text.) If that is incorrect then this tentative ruling is subject to any opposition at the hearing (see OST, dkt. 538). This tentative ruling is also based on this Court's review of the other relevant documents. See dkt. 495 (selection of proposed agent), 528 (order approving settlement), 531 (objection), 535 (Committee support), 536 (motion), Application for Order Shortening Time (dkt. 537, 540) and evidence of service (dkt. 541).
Proposed order: Counsel for the debtor is directed to lodge a proposed
order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
9019 Motion (see Term Sheet, dkt. 445, 528). This Court's Order (dkt. 528) approving Settlement directed the parties to prepare, sign and file a final version of the "Term Sheet" reflecting certain modifications. This Court notes that the debtor appears to have circulated a revised Term Sheet (dkt. 536, Ex.A) that incorporates the changes discussed on the record, although that revised Term Sheet is not "redlined" and this Court has not engaged in any line-by-line review of its terms. In any event, the parties are directed to provide a status report on when a declaration will be filed with this Court
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memorializing the fully executed final Term Sheet.
Motion to Extend Time to Assume or Reject Lease (dkt. 457). The tentative ruling is to continue this motion to the date and time of the continued status conference, for the authorized Agent to consider and take a position on the merits of this motion.
Analysis: Although the debtor argues (e.g., in dkt. 534) that she is prejudiced by any lack of immediate decision on pending matters, the tentative ruling is that the debtor has not established undue prejudice because of (i) the debtor's own delay in selecting a nominee to be the Agent,
(ii) the debtor's ability to engage in numerous other activities to attempt to turn around her finances without having to wait for those particular pending matters to be resolved, and (iii) the fact that, as this Court interprets the deadlines in the Term Sheet, "Approval" of the settlement did not occur until "entry" of an order approving the settlement (see dkt. 474, Ex.C, section 1, 1st paragraph, penultimate sentence), and the oral ruling was not entered on the docket, only the written order (dkt. 528) was entered, so the time of Approval (which commences the time for the debtor to perform various tasks under the Term Sheet) did not commence until entry of that written order on 7/25/18.
Motion to Assume and Assign 1629 Griffith Lease (Presbytery) (dkt. 351). Continue to the date and time of the continued status conference, for the authorized Agent to consider the merits of this motion, for the same reasons as stated in section (1)(c) of this tentative ruling, above.
Motion to Expand Scope of Kaplan Emplolyment (dkt. 461, 480, 497, 505, 534). Continue to the date and time of the continued status conference, for the authorized Agent to consider the merits of this motion, for the same reasons as stated in section (1)(c) of this tentative ruling, above.
Scheduling Conference re: Evidentiary Hearing on Motion to Assume 1356 Palmetto Lease (Bridge Tavern/Villain's) (dkt. 187). At the 7/18/18 hearing, this Court was informed that the proposed assignee/buyer had withdrawn. This Court subsequently issued an Order (dkt. 501) deeming the portion of the motion that sought to assign the lease moot and withdrawn, and continuing the portion of the motion that seeks to assume the least to this hearing solely for scheduling further proceedings on this motion. The parties should be prepared to address a schedule for this motion and/or whether to continue the scheduling matters so that the Agent can determine whether or not to pursue this motion and related matters.
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Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD.
Continued status conference: Date and time set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/16/18:
Appearances required. The tentative rulings are set forth below. In addition, the tentative ruling is to set a continued status conference on 7/27/18 at 9:00 a.m., or such alternative time as may be ordered at the hearing.
Current issues.
9019 Motion (see Term Sheet, dkt. 445). This Court will address the objections filed by Mr. Casanova (dkt. 465, 466) and The Presbytery of the Pacific (the "Presbytery") (dkt. 467) and the replies filed by the debtor (dkt. 472) and by the Archbishop/Institute and the Bird Nest (dkt. 474). Among other things, this Court will address whether the Term Sheet can be approved without the further documentation that is contemplated by the settling parties. In that regard, the parties should address the proposed amendment to paragraph 6 of the Term Sheet. See dkt. 474, Ex.C.
This Court expresses no present opinion on those issues. This Court is intentionally withholding any further tentative ruling on those matters so as not to disrupt potential settlement discussions among those parties, but if the parties have not agreed to the proposed amendment to paragraph 6 (or some other resolution) then this Court intends to provide a tentative ruling at the commencement of the hearing.
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The parties are encouraged to meet and confer about the foregoing
issues. If, at the end of the hearing, there are issues that remain to be addressed, then the parties should be prepared to address whether this Court should set a continued hearing on the date and time specified at the start of this tentative ruling or some other date.
Stay relief motion (appellate litigation with Bird Nest and Archbishop/Institute) (dkt. 68). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Exclusivity motion (dkt. 308, 348, 422). Continue to the date and time set forth at the start of this tentative ruling, and meanwhile extend exclusivity for the same amount of time, on the same terms and conditions as this Court's Prior Order (dkt. 422) - i.e., no incurring of fees or expenses for plan-related work. This Court calculates that the extensions would be as follows: (i) The 120-day period specified in section 1121(c)(2) and (d)(1) (deadline for filing a plan) will be further extended from 8/15/18 (see dkt. 422) to and including 9/19/18, and (ii) the 180-day period specified in section 1121(c)(3) and (d)(1) (deadline for acceptance of plan by impaired classes) will be further extended from 10/15/18 (see dkt. 422) to and including 11/19/18.
Cash Collateral motion (dkt. 5). Continue to the date and time set forth at the start of this tentative ruling, and meanwhile extend the interim authorized use of cash collateral through and including the conclusion of the continued hearing subject to the same terms and conditions as previously authorized by this Court (see dkt. 29, 79, 239, 244, 347, 413), if this motion is not mooted by the disposition of the settlement motion.
Bridge Tavern, LLC asset sale motion (dkt. 112). Continue to the date and time set forth at the start of this tentative ruling.
Villain's Tavern reopening motion (dkt. 214). Grant. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Trustee appointment motion (dkt. 332). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Security Deposit refund motion (dkt. 350). Grant. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Budget motion (dkt. 96). Extend the interim authorization through
and including the date of the continued hearing and meanwhile approve the budget subject to the same terms and conditions as previously authorized by the Court (see dkt. 340), if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Bird Nest) (dkt. 292). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Institute) (dkt. 296). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Claim objection (Archbishop) (dkt. 294). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Vehicle refinance motion (dkt. 216). Continue to the date and time set forth at the start of this tentative ruling, if this motion is not mooted by the disposition of the settlement motion.
Vehicle relief from Stay motion (dkt. 349). The hearing on this motion has been vacated, and this matter is off calendar (see Adequate Protection Order, dkt. 444).
Motion to Assume and Assign 1629 Griffith Lease (dkt. 351). Continue to the date and time set forth at the start of this tentative ruling.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD.
Continued status conference: Date and time set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 6/22/18:
Appearances required.
Current issues.
Urbanlime/Haro employment (dkt. 93, 253), Bridge Tavern (Villain's) Reopening Motion (dkt. 214, previously granted, dkt. 339, but rescheduled per dkt.369 para. 4.5), Sale Motion (dkt. 112, temporarily denied, dkt. 369, 385) and Lease Assignment Motion (dkt. 187, re-set for hearing, dkt. 388). The parties should be prepared to address the issues set forth in this Court's orders (dkt. 369, 378, 385, 388) setting this hearing.
Motion to extend exclusivity (dkt. 308, 312, 333, 348). The tentative ruling is to preserve the status quo by:
prohibiting the estate from incurring any fees or expenses relative to any contemplated plan between time this tentative ruling is posted and the conclusion of the hearing on the motion to appoint a trustee (dkt. 332, the "Trustee Motion"), currently scheduled for 7/10/18 at 2:00 p.m;
if the Trustee Motion is denied, then extending exclusivity through at least 8/14/18 (any further extension will be addressed at the hearing on 7/10/18 at 2:00 p.m.), so that Mr. Tilem will have the time he has stated he would need to draft a plan (approximately 30 days); and
if the Trustee motion is granted, then terminate exclusivity. (c) Cash collateral motion (dkt. 5, 14, 15, 29, 74, 151, 152, 163, 164,
167, 168, 171, 172, 176, 185, 244). The tentative ruling is to continue this matter to 7/10/18 at 2:00 p.m., and meanwhile authorize the continued use of cash collateral through the conclusion of that continued hearing.
(d) Relief from stay motion (dkt. 68, 79, 141, 147, 154, 162, 222 section v., 270, 312). The tentative ruling is to continue this matter to 7/10/18 at 2:00 p.m.
Expansion of Insul employment (dkt. 305). Please see calendar no. 2 (6/22/18 at 10:00 a.m.).
Hearings on 7/10/18. Some matters in this case have been self- calendared for 7/10/18 at 1:00 p.m. The tentative ruling is that all matters set for 7/10/18 in this case will be heard at 2:00 p.m.
Deadlines/dates. This case was filed on 3/6/18.
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Bar date: 8/24/18 (dkt. 367, timely served on 6/19/18 per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 7/10/18 at 2:00 p.m., status report due 7/5/18 at noon.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
This court anticipates posting a tentative ruling at a later time. [Note: no further tentative ruling was posted.]
Tentative Ruling for 5/7/18:
[See Memorialization of Tentative Rulings for 5/7/18 (dkt. 234, 236, 238, 239)]
Tentative Ruling for 5/3/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The only issue this Court intends to address is a continued hearing date in view of the last-minute papers that were filed, to fit the parties' and this Court's own needs.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear.
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Cash flow and cash collateral motion (dkt. 5, 14, 15, 29). This Court's written order (dkt. 29) erroneously lists the continued hearing as 3/20/18 instead of 4/17/18 at 2:00 p.m., as orally ordered at the hearing on 3/9/18. Nevertheless, it is appropriate in connection with this Status Conference to address the debtor's current and projected cash flow and related issues.
This Court was not persuaded at the hearing on 3/9/18 that the debtor can generate positive cash flow. The debtor is directed to provide a brief update on any plans to generate positive cash flow from her various businesses and properties. It is also appropriate for other parties in interest to address whether there has been adequate disclosure to date regarding the finances of those businesses and properties. The debtor is cautioned that the declaration due on 3/27/18 must provide comprehensive disclosures regarding those businesses and properties: if the debtor cannot show reasonable prospects for positive cash flow within a reasonable time then this Court might have to grant relief from the automatic stay (upon a proper motion), or convert or dismiss this bankruptcy case, at least if the debtor does not abandon unprofitable businesses or properties.
Employment applications. The parties should be prepared to address the oppositions (dkt. 56, 57) and the direct and indirect source(s) of funds used by the debtor to pay prepetition retainers (see dkt. 48, and cf. dkt. 9, p.6, dkt. 18, p.8, dkt. 20, p.8 - blank spaces instead of disclosure), including when the liens against the 1902 property arose (dkt. 48, Ex.A). In addition, the parties should be prepared to address the following issues:
Proposed bankruptcy counsel - Tilem (dkt. 9, 10): (i) Why were resumes for associates, paralegals, and persons who are "of counsel" to the firm not included? (ii) Has counsel waived or amended the provisions in
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the retainer agreement regarding the "evergreen" retainer; "overtime" rates, and any attorney's lien? (iii) As for proposed out-sourcing, counsel must address whether employment of such counsel could result in imputed or actual conflicts of interest from any work performed by such attorneys for their own clients or for other law firms.
Proposed special counsel: the Robins firm and Horvitz firm (dkt. 18, 19, 20, 21). The hourly rates of proposed counsel at the Robins firm and Horvitz firm are substantially greater than those for the debtor's proposed general bankruptcy counsel and the Snyder firm. How will the debtor - acting as a debtor in possession with the duties of a trustee for the benefit of creditors - assure that the potential benefits are not outweighed by the costs that can be reasonably anticipated in connection with the ongoing litigation with Birds Nest, the Archbishop, and the Institute (as those terms are defined in the parties' papers)?
Proposed special counsel: the Snyder firm (dkt. 36, 37). (i) What is the nature of the litigation in which that firm represents the debtor and co-plaintiff, Bridge Tavern, LLC against Odysseuss Investment Group, LLC?
(ii) What are the potential costs/risks and benefits? (iii) Is there any actual or potential conflict of interest between the two plaintiffs (e.g., if any judgment in their favor were to be allocated between them in a way that is unfavorable to one or the other)? (iv) From the description at the status conference on 3/9/18 it seemed that the Snyder firm might be assisting the debtor now or in future in transactional matters - is that so?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 4/17/18 at 2:00 p.m., status report due 4/3/18. (see order, dkt. 30).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/9/18:
[no tentative ruling was posted for this hearing]
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
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BOBS, LLC
vs DEBTOR
Docket 687
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein
2:00 PM
Docket 685
Please see the tentative ruling for the status conference (calendar no. 6, 11/6/18 at 2:00 p.m.).
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
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(B) the Form, Scope, and Nature of Solicitation, Balloting, Tabulation, and Notices with Respect Thereto; and (C) Related Confirmation Procedures, Deadlines and Notices
fr. 09/18/18, 10/2/18
Docket 341
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the status conference (calendar no. 13, 11/6/18 at 2:00 p.m.)
Tentative Ruling for 10/2/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the papers pertaining to the plan proposed by creditors Mr. Britton and Ms. West (see dkt. 341-60) and particularly the issues of (1) impairment of Class 6, (2) compliance with 11
U.S.C. 1129(a)(5)(A), and (3) the possibility of a structured dismissal or alternative plan proposed by the debtor and Mr. Riggs.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards
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Movant(s):
Peter J Crosby
Layne Leslie Britton Represented By Eric D Winston Shahin Rezvani
Jennifer L Nassiri
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fr. 1/10/17, 02/28/17, 04/25/17, 06/20/17, 9/19/17, 12/19/17, 2/27/18
Docket 169
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the status conference (calendar no. 13, 11/6/18 at 2:00 p.m.)
Tentative Ruling for 2/27/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
(1) Current issues. At the 12/19/17 hearing, this court continued the status conference for the parties to first address the debtor's motion for an order estimating Mr. Britton's claim (dkt. 297). There is no tentative ruling, but the parties must address the underlying papers concerning that motion, including Mr. Britton's opposition (dkt. 314) and the debtor's reply (dkt. 317).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Continue to 2/27/18 at 2:00 p.m. because, so far as this court can tell, it probably makes sense first to address the debtor's motion for an order estimating Mr. Britton's claim (dkt. 297), which is presently set for hearing on
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1/23/18. If any party in interest disagrees, or believes that it would be useful to have appearances at a status conference on this claim at this time, they may contest this tentative ruling as provided below. Appearances are not required on 12/19/17.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
Movant(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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fr. 01/23/18, 1/30/18, 3/20/18, 5/1/18
Docket 297
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
Movant(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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Hearing on Motion for Order Estimating Claim of Layne Leslie Britton fr. 5/1/18
Docket 327
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
Movant(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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5/23/17, 7/11/17, 8/22/17, 10/03/17, 1/23/18,
1/30/18, 3/20/18, 5/1/18
Docket 7
Tentative Ruling for 11/6/18:
This Court has been informed via a telephone call to chambers that there have been recent consensual resolutions of some issues. Accordingly, there is no tentative ruling. Appearances required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues: The debtor and Mr. Britton have stipulated (dkt. 327) to continue the hearing on the motion to estimate Mr. Britton's claim to 10/30/18 at 2:00 p.m. This Court issued an order (dkt. 328) setting the matter for hearing so that Ms. West can be heard on the proposed continuance, if she wishes. The tentative ruling is to approve the stipulation, but with one
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additional week, to 11/6/18@2, because the date selected by the parties is not available on this Court's calendar.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: TBD
Continued status conference: 7/17/18 at 2:00 p.m.; brief Status Report due 7/9/18 at noon.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required.
Current issues: estimating Mr. Britton's claim
This matter has been substantially briefed and argued at prior hearings (see para. "(1)" of Revised Tentative Ruling for 1/30/18, reproduced below, and Mr. Britton's Opposition to Estimation Motion, dkt. 315, and debtor's Reply, dkt. 317, 322). This Court anticipates providing an oral tentative ruling at the start of the hearing, followed by a brief time (maximum 10 minutes each) for further argument before this Court makes a final ruling on the estimation motion.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: TBD
Continued status conference: 4/17/18; no written Status Report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 1/30/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
(1) Current issues: estimating Mr. Britton's claim
At the hearing on 10/3/18 this court contemplated that after the debtor filed its motion (dkt. 297) for an order estimating the claim of creditor Layne Leslie Britton then this court would set a briefing schedule. The tentative ruling is to set the briefing schedule set forth below.
This court notes that the parties have already briefed, and this court has preliminarily addressed, some of the underlying issues, in connection with the debtor's prior motion for an order approving a draft plan and disclosure statement. Therefore a longer briefing schedule does not appear to be necessary. See dkt. 244 (motion), dkt. 260 (opposition, especially at pp.17:11-21:13 and Winston Decl. Ex.1.B.), dkt. 263 (reply, especially at pp.9:9-12:24), transcript of 8/22/17 hearing (dkt. 272), debtor's status report (dkt. 273), and audio recording of 10/3/17 hearing.
Tentative briefing schedule:
2/13/18 deadline for Mr. Britton's opposition to estimation motion (dkt.
297)
2/20/18 deadline for reply by the debtor 2/27/18 at 2:00 p.m., hearing
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: TBD
Continued status conference: to be held concurrent with the hearing on the claim estimation motion; no written Status Report required (but if any status report is filed by any party, it should be filed at the same time as the debtor's reply so that this court
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will have adequate time to review it before the hearing).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/23/18:
Continue to 1/30/18 at 2:00 p.m. to be concurrent with the preliminary hearing (for scheduling purposes) on the debtor's motion (dkt. 297) to estimate Mr.
Britton's claims. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/3/17:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the debtor's status report (dkt. 273), and any other matters appropriate for a status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. There is no tentative ruling, but the parties should be
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prepared to address the issues raised in the debtor's motion for approval of the proposed disclosure statement (dkt. 244), the Britton opposition (dkt.
260), the debtor's reply (dkt. 263), the debtor's status report (dkt. 262), and any other matters appropriate for a status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/11/17:
Continue as set forth below. Appearances are not required on 7/11/17.
Current issues
No sua sponte issues at this time.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement (dkt. 246, 245): D/S hearing scheduled for 8/22/17 at 2:00 p.m. (see dkt. 253).
Continued status conference: 8/22/17 at 2:00 p.m.; brief Status Report due 8/15/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/23/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The parties should be prepared to update this court on the status of the issues noted in the debtor's Eighth Status Report (dkt. 231), as well as whether this court should set any deadlines or procedures.
Deadlines/dates. This case was filed on 12/1/15.
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Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: The court will discuss setting deadlines related to the Plan/Disclosure Statement at the status conference.
Continued status conference: 6/20/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/25/17:
Continue all matters to 5/23/17 at 1:00 p.m. pursuant to the debtor's request in the Seventh Status Conference Report (dkt. 224, p.3). Appearances are not required on 4/25/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/28/17:
Continue all matters to 4/25/17 at 1:00 p.m. pursuant to the debtor's request in the Sixth Status Conference Report (dkt. 212, p.3). Appearances are not required on 2/28/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 12/13/16:
Continue all matters to 2/28/17 at 2:00 p.m. pursuant to the parties' request in the status conference statement (dkt. 181, p.3). Appearances are not required on 12/13/16.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative
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rulings".
Tentative Ruling for 12/13/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The parties should be prepared to update this court on the status of this case including their negotiations, why this court should not order mandatory mediation, which parties in interest should be included in such mediation, and any other appropriate procedures regarding payment of professionals, filing documents under seal, etc.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: no deadline
Continued status conference: 2/28/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Fee applications. The tentative ruling is (1) after the reductions that Browne concedes, to overrule the Britton objection to Browne's fees; (2) to sustain in part the limited objection of Ms. West by allowing 100%, but temporarily deferring any payment (either from any retainer or from other sources), on account of the fee applications, with a deadline of 12/12/16 for Ms. West to file (a) an adversary proceeding to determine the relative
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priorities of her rights and interests in the royalties, and/or other funds in which the debtor's estate asserts an interest, as against the debtor, its creditors, and other parties in interest, and (b) a request (motion) for adequate protection of her alleged claims or interests (pursuant to 11 U.S.C. 361 and 363(c), (e), (p), and Rule 7001(2), (7) & (9), Fed. R. Bankr. P.). In addition, this court anticipates providing a tentative ruling on the merits of Ms. West's asserted rights and interests, and addressing what documents (already filed or filed in future) do or do not have to be under seal, and establishing a mutually workable procedure for any sealed documents.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement: no deadline
Continued status conference: 4/4/17 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/6/16:
Continue to 12/13/16 at 1:00 p.m. based on the debtor's current status report (dkt. 112). Appearances are not required on 9/6/16.
The debtor is directed to file a brief status report two weeks before the continued status conference.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 4/12/16:
Continue to 9/6/16 at 11:00 a.m. to address the following issues. Appearances are not required on 4/12/16.
Based on the statements made in the debtor's status report (dkt. 92), this
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Court continues this status conference as set forth above. The debtor shall file a brief status report two weeks before the continued status conference.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 2/2/16:
Continue to 2/23/16 at 2:00 p.m. unless any opposition/response to employment or recusal are filed prior to 1/30/16. Appearances are not required on 2/2/16.
Reasons: At the hearing on 1/19/16, this court stated that the status conference would be continued without further hearing if no oppositions/responses to employment or recusal were received by the deadline for such things, which is 1/29/16. As of the preparation of this tentative ruling (on 1/29/16) no such documents have yet been filed.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Revised Tentative Ruling for 1/19/16:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Key documents reviewed: Motion for relief from automatic stay (dkt. 11), the debtor's opposition (dkt. 33), and the movant's reply (dkt. 46); and the debtor's application to employ Browne George Ross LLP as special counsel under 11 U.S.C. 327(e) and supporting papers (dkt. 26-30, 44, 45).
Current issues.
Background. Claimant Britton's motion for relief from the automatic stay (dkt. 11) seeks to modify the automatic stay to liquidate the parties' claims in the underlying State Court action (Britton v. Riggs, LA Superior Ct. No. BC 496298). Just before trial was set to commence, the debtor filed this
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bankruptcy case, and trial has now been continued to 2/10/16. The debtor has filed an application (dkt. 26) to employ its existing attorneys in the State Court action as special counsel.
In view of the apparent urgency of these matters, this Bankruptcy Court issued an order raising a number of its initial concerns (dkt. 35), held a preliminiary hearing on 1/8/16, and directed the debtor to serve a supplemental notice addressing certain issues. In addition, when Judge Bason's law clerk learned of certain attenuated connections between him and the parties in this case, those matters were disclosed on the record (dkt. 39), and the debtor was directed to serve those disclosures on all parties in interest.
The debtor complied with these notice requirements (see dkt. 44, 43, 45) and the period for any response expires on 1/29/16 (fixed date in dkt. 39 as to this court's disclosures; and service on 1/11/16 + 14 days' notice + 3 days for service via U.S. mail = 1/29/16 as to the employment application). As of the time when this tentative ruling has been prepared (1/18/16) no response on either matter appears on the docket.
Relief from the automatic stay. The tentative ruling is to modify the automatic stay as follows, effective immediately upon (i) entry of an order of this court granting the employment application (so that the debtor can defend and prosecute its claims in the State Court action) and (ii) resolution of any request to be heard regarding recusal. Specifically, the automatic stay would be modified to permit litigation of the State court action insofar as liquidating claims by Mr. Britton agains the debtor and its principal, Mr. Riggs, as well as liquidating any counterclaims, including all subsidiary disputes such as whether the statute of limitations should be tolled and any alter ego issues, but not to permit enforcement of any judgment against any property in which the debtor asserts an interest absent further order of this Bankruptcy Court.
Judge Bason is not persuaded by the debtor's argument that the statute of limitations issue should be addressed by this Bankruptcy Court before any State Court litigation is permitted to continue. The principles underlying the Rooker Feldman doctrine (that this Bankruptcy Court may not act as essentially an appellate court for State Court determinations), as well as comity, a respect for the State Court's determination of these issues, conservation of judicial resources, the avoidance of forum shopping, and not permitting a party to obtain "two bites at the apple" all weigh against deciding
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the statute of limitations issues here. The State Court issued a detailed tentative ruling (dkt. 46-1, Ex.A, pp.23-26) regarding the statute of limitations issues, including its conclusion that those issues could not be determined as a matter of law because a reasonable trier of fact "may well determine that the delay in filing the action was due to the Defendants' fraud or other misconduct such that Defendants should be estopped from asserting the statute of limitations," and the State Court apparently adopted that tentative ruling when it denied the defendants' motion for summary judgment and declined to address the statute of limitations issues before trial. Judge Bason is not persuaded that this Bankruptcy Court can or should revisit that determination.
As to any claims that are truly alter ego claims (as distinguished from fraudulent transfer claims or other avoidance actions that belong to this bankruptcy estate), the tentative ruling is that under the Ahcom decision (623 F.3d 1248 (9th Cir. 2010)), any such claims do not belong to the bankruptcy estate and, therefore, the automatic stay would not prevent claimant Mr.
Britton from seeking to establish and pursue any alter ego claims against Mr. Riggs. Alternatively, the tentative ruling is to modify the automatic stay (if it applied) to permit such true alter ego claims to be litigated (when and if the State Court determines that they should be) because if those issues turn out to be relevant then they will have to be litigated anyway, and the State Court would be the proper forum in which to litigate them. To the extent that the debtor seeks to stay (enjoin) any such alter ego claims against Mr. Riggs in this bankruptcy case, such an injunction would have to be the subject of a separate adversary proceeding. See, e.g., In re Excel Innovations, Inc., 502 F.3d 1086 (9th Cir. 2007).
Employment of special litigation counsel. The tentative ruling is to conditionally approve employment of special litigation counsel for the reasons stated at the preliminary hearing on 1/8/16 and in the application (dkt. 26) and debtor's supplemental disclosures (dkt. 44). The condition is that no order approving such employment should be lodged until after the period for responses to such application or to this court's disclosures has expired (on 1/29/16), and of course if any such response is filed then this court will consider such responses (at a hearing as set forth below).
The potential for alter ego claims does not appear to create any cognizable conflict, at least at this stage of the litigation. Although it could be
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argued that there would be a conflict because any recovery that Mr. Britton could obtain from Mr. Riggs would decrease his claim against the debtor, and therefore theoretically benefit the debtor, it seems more likely at this stage that both Mr. Riggs and the debtor have a unified interest in contesting any asserted grounds for alter ego liability (i) so as to assure that Mr. Riggs devotes his energies to the debtor's future success and ability to pay its creditors, and (ii) so as to attempt to assure that there is a level playing field among the debtor's creditors (which, arguably, there would not be if one creditor - Mr. Britton - could pursue alter ego recoveries before other creditors could seek to do the same).
Of course, counsel for the debtor (both general and special counsel) and Mr. Riggs himself will need to monitor the situation continually. If a conflict or potential conflict does develop, they will need to file appropriate disclosures and/or seek a supplemental ruling from this court regarding the terms of any continued employment of special counsel.
Tentative hearing. If any response is filed to either the employment application or this court's disclosures, then a hearing will take place on 2/2/16 at 2:00 p.m. to address those things. If there is any such response, the debtor must notify chambers so that the matter may be added to this court's calendar for that day.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement*: file by 7/1/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 2/2/16 at 2:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
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*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/19/16:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/5/16:
Appearances required by counsel for the debtor and by the principal of the debtor.
Current issues.
Affiliated businesses. The debtor's status report (dkt. 20, p.8:17-9:3) requests that the debtor be excused from providing financial information concerning affiliates in both the status report and monthly operating reports. The tentative ruling is to grant that request.
Service of status report. This court's form status report must be served on, inter alia, all of the debtor's secured creditors and the top 20 largest general unsecured creditors. It appears that there are no secured creditors, but that unsecured creditors were not served (see dkt. 20, p. 10). The tentative ruling is to direct the debtor, no later than 1/6/16, to serve all parties in interest with a copy of the status report and this tentative ruling, and then parties in interest may, if they choose, raise any appropriate issues at future status conferences.
Plan and disclosure statement. The debtor has suggested (dkt. 20, p.4:20-23) a deadline of 4/30/16 to file initial drafts. The debtor should be prepared to address the associated procedures, including the local form plan and whether that deadline is consistent with the pending litigation with creditor Layne Leslie Britton (dkt. 11), currently set for trial in State court for 2/10/16.
Deadlines/dates. This case was filed on 12/1/15.
Bar date: Bar date: 2/8/16 (timely served, dkt. 19 & 25).
Plan/Disclosure Statement*: file by 4/30/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
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U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 1/19/16 at 1:00 p.m. (no written status report required; telephonic appearances permitted provided that parties comply with posted procedures for same).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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1/23/18, 02/13/18, 5/1/18, 5/29/18, 6/12/18, 08/14/18
9/18/18
Docket 1
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 18, 11/6/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 7, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 2, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 2, 6/12/18 at 2:00 p.m.).
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 4, 5/29/18 at 2:00 p.m.).
Tentative Ruling for 5/1/18:
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required.
Current Issues.
B&B Liquidating, LLC (2:18-bk-11744-NB). On 2/16/18 B&B Liquidating LLC ("BBL") filed a chapter 11 petition for relief before this court. In its "first-day" motions, BBL details the troubles B&B Bachrach ("BBB") encountered post-confirmation, which resulted in the need to liquidate. See e.g., BBL Liquidating Motion, dkt. 17.
BBB should be prepared to address the debtor's progress in liquidating the estate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Continue to 4/17/18 at 2:00 p.m. in view of the debtor's post-confirmation status report (dkt. 313). Brief status report due 4/3/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue to 2/13/18 at 2:00 p.m., in view of (a) the debtor's status report (dkt. 313) and (b) the inability of the Office of the United States Trustee to appear on 1/23/18 in view of the shutdown of much of the federal government. Note: Prior to 2/13/18 this court anticipates posting a tentative ruling for a further continuance to 4/17/18 at 2:00 p.m., unless a party in interest files a status report no later than 2/6/18 requesting to be heard on 2/13/18. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Continue to 11/7/17 at 2:00 p.m. to be heard concurrent with the fee applications. Appearances are not required on 10/17/17.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's
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Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/12/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any outstanding disputes with landlords, or other issues that are appropriate for disposition at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Bachrach, LLC Represented By Brian L Davidoff
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Compelling Immediate Payment
Docket 225
Please see tentative ruling in Status Conference for B&B Liquidating, LLC (calendar no. 18, 11/6/18 at 2:00 p.m.).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
Starwood Retail Partners LLC Represented By Brian D Huben
The Forbes Company Represented By Brian D Huben
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Docket 227
Please see tentative ruling in Status Conference for B&B Liquidating, LLC (calendar no. 18, 11/6/18 at 2:00 p.m.).
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
B&B Liquidating, LLC Represented By Brian L Davidoff Brian L Davidoff
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§§ 365(d)(3) and 503(b) and Granting Related Relief
Docket 229
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
Simon Property Group, Inc. Represented By
Ronald M Tucker Esq Jonathon J. Herzog
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Docket 19
Revised Tentative Ruling for 11/6/18:
(1) Dismiss this case, and (2) grant the landlords' motion to compel payment of their administrative claims, all subject to the conditions set forth below. Appearances required.
Motion to dismiss case etc. (dkt. 227); Siena-Opp. (dkt. 241); Great Am./GA-Ltd. Opp. (dkt. 243); Debtor reply (dkt. 245); Committee reply (dkt. 247)
Dismiss, but retain jurisdiction. The tentative ruling is to grant Debtor/Committee's motion, including (i) dismissal of this case, after a relatively short delay (as they request), (ii) issuance of an order compelling payment by Siena of the "carveout" balance of professional fees and other specific administrative expenses (subject to the usual standards to prove the allowable dollar amounts), and (iii) retention of jurisdiction to the maximum extent permitted by law. That retention of jurisdiction includes the landlords' administrative claims against Siena (discussed below), as well as any disputes regarding whether Siena must share any future recoveries - the latter realistically boils down to the controversy over the 25%/75% division of any recoveries on "commercial tort claim[s]," so that is the only aspect of such sharing that will be discussed (although the retention of jurisdiction includes adjudication of any recovery-sharing disputes).
It would be uneconomical and inconvenient for the parties to have to litigate those landlord claims and recovery-sharing claims in a new forum, when this Bankruptcy Court already has great familiarity with those issues. In fact, it is not clear that any other forum would even have jurisdiction over such bankruptcy-specific issues.
It would also be unfair to all parties to make them litigate such issues in a new forum. In construing any ambiguities in the parties' stipulations and
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this Court's prior orders, it is essential to know the context in which those things happened, including both this case and the earlier bankruptcy case.
Finally, comity is not a concern. The bankruptcy issues predominate, and there is no impingement on the State courts' jurisdiction or authority.
For all of these reasons, retention of jurisdiction is appropriate. See In re Carraher, 971 F.2d 327, 328 (9th Cir. 1992) (approving post-dismissal jurisdiction after considering "economy, convenience, fairness and comity"); In re Knew Weigh, LLC, 576 B.R. 189, 202-04 (Bankr. C.D. Cal. 2017) (same, considering "(i) judicial economy, requiring consideration of efficiency of judicial resources; (ii) convenience, requiring consideration of the parties' litigation efforts and access to alternative forums; (iii) fairness, requiring consideration of the equity and circumstances of a particular case; and (iv) comity, requiring consideration of whether the state laws involved are complex such that they ought to be construed and applied by state trial courts and reviewed by state appellate courts").
Ripeness of 25%/75% issue. The tentative ruling is to reject the argument of Debtor and the Committee that any interpretation of the 25%/75% recovery-division issue is not ripe or should be deferred. True, Siena might not prevail in such claims, and it would not make sense to expend substantial time and money litigating respective shares of a recovery if those expenses would outweigh the present discounted value of the range of likely recoveries. But the issues have already been briefed, so the expense is minimal.
Nor does the fact that the parties have no actual dollar amounts in dispute, or claims for damages against each other, mean that it would be premature to decide the issues. To the contrary, the tentative ruling is that it is appropriate to address these issues now because Siena needs to know, before it invests in litigation, whether it will receive all recoveries or only 75% of them.
Siena is essentially seeking declaratory relief construing the 25%/75% recovery-sharing provision:
Declaratory relief is an equitable remedy distinctive in that it allows adjudication of rights and obligations on disputes regardless of whether claims for damages or injunction have arisen. In effect, it brings to the present a litigable controversy, which otherwise might only be tried in the future. [ In re Singh, 457 B.R. 790, 798 (Bankr. E.D. CA. 2011) (citation and internal quotation marks
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omitted) (emphasis added).]
There must be an actual controversy, which is definite and concrete,
and the matter must be within subject matter jurisdiction for this federal court.
Id. All of those conditions are satisfied.
As an aside, this Court notes that sometimes declaratory relief requires an adversary proceeding, but the tentative ruling is that no adversary proceeding is required for the type of dispute at issue. See Rule 7001(9) (Fed. R. Bankr. P.) (adversary proceeding required for declaratory judgment "relating to any of the foregoing" types of relief in that Rule, such as dischargeability litigation). In any event, no party has argued that an adversary proceeding is required.
For all of these reasons, the tentative ruling is that it is appropriate to address the 25%/75% dispute now, rather than defer it to some future date.
Interpretation of the 25%/75% language. Siena argues in effect (dkt. 241, p.2:8-27) that the parties' agreement to the 25%/75% split of any "commercial tort claim" only applied to claims held by the debtor - i.e., derivative claims - and not to Siena's direct claims (for both alleged breach of contract and alleged torts) against the Great American appraisal entity. The tentative ruling is to agree.
Based on the operative language, and the context in which the parties were negotiating, it seems highly unlikely that Siena would have intended to share recoveries from any direct claims it might have. See dkt. 141, p.15, para.28; see also dkt. 241, p.3. It is typical for creditors' committees and debtors to argue that security interests do not extend to claims that could be desribed as "derivative": e.g., avoidance actions that arise under the Bankruptcy Code. As this Court understands the theories behind such arguments, they would not apply to "direct" claims: those arguments are partly based on the limitations on secured claims under 11 U.S.C. 552, and partly based on whether security interests could attach at all to claims that only come into existence once the bankruptcy petition is filed. Those arguments do not apply to Siena's "direct" claims that exist independent of the Bankruptcy Code.
Accordingly, the tentative ruling is that the 25%/75% recovery-sharing provision does not apply to the claims set forth in Siena's existing complaint against the Great American entities.
Notice by Siena. That said, it might be that the present litigation with the Great America entities will expand, or that future claims against them
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or the Tiger entity will include claims that might come within the 25%/75% recovery-sharing language. Accordingly, the tentative ruling is to grant the request of Debtor and the Committee that Siena be ordered to provide notice of any recoveries that might be subject to the 25%/75% language (or - although the possibility seems vanishingly remote - the language requiring a sharing of proceeds if Siena's debt is paid down below $1.5 million).
Starwood/Forbes motion re admininstrative rent (dkt. 225); Siena Opp. (dkt.239, 240); Starwood/Forbes response (dkt. 246, 248); Committee reply (dkt. 247)
Background. It appeared from the start of this case that Siena's claim most likely would be under water, so it made sense that Siena would be primarily responsible for the expense of liquidating Debtor's assets, including administrative expenses. In particular, under prior orders of this Court, Siena is obligated to pay postpetition rents. See dkt. 220 (relief from stay order, with conditions); dkt. 49 (rejection procedures order); dkt.177 (Starwood notice of rejection as of 6/4/18); dkt.213 (Forbes notice of rejection as of 8/29/18); but cf. dkt. 237 (asserting lockout as of 8/27/18) and dkt. 246 (evid. obj.).
Evidentiary objections. The tentative ruling is to sustain Siena's hearsay objection to the evidence attached to the Starwood/Forbes landlord motion (as to the calculation of rents allegedly owing). The supplemental declaration (dkt. 248) does not fully resolve the hearsay problem, although presumably the parties can establish the undisputed and disputed facts with greater specificity, through formal or informal discovery.
The tentative ruling is also to sustain the Forbes landlord's objection to Siena's evidence of a lockout on 8/27/18. Again, though, it should be possible to figure out and present the disputed and undisputed facts (although, given the dollar amount at stake, this particular subset of disputes might be more efficiently resolved by a quick compromise).
Section 506(c). The tentative ruling is to reject Siena's argument under section 506(c). The terms to which the parties agreed, and this Court ordered, are that:
Siena shall not raise as a defense to [landlords' assertion of administrative rent expenses] that the landlords' remedy is limited to surcharging Siena's collateral, and shall pay any amounts that the Court determines Siena is required to pay the landlords within
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seven days [Dkt. 220, p.3, para.16.3].
Siena attempts to distinguish this language as applying only to its
defenses, not to what the landlords have to prove. That is unpersuasive: the tentative ruling is that, both from the language itself and the context in which the parties were negotiating (that all administrative expenses very likely were for Siena's benefit due to its blanket lien), this language can only be interpreted to mean that, as long as a landlord meets the normal standards to establish its administrative expense, there is no additional burden to establish a benefit to Siena under section 506(c).
Percentage rent. The tentative ruling is that, on the one hand, the starting point would be that percentage rent is rebuttably presumed to be included in what Siena would have to pay, because that is a part of every month's rent under the terms of the lease. In addition, any landlord's waiver of the anti-liquidation clause does not constitute a waiver of the percentage rent clause.
On the other hand, the tentative ruling is that the liquidation sale context overcomes that presumption, and leaves the issue of the parties' intent undecided. Put differently, there is a genuine question whether rent of 20% of liquidation sale proceeds is what the parties contemplated.
A hypothetical landlord might expect that, as part of the enforcement of its rights under 11 U.S.C. 365(d), it should receive both minimum/base rent and percentage rent based on a normal month's level of sales. But such a landlord might expect either much less (e.g., if its choice is between minimum/base rent for the month or $0 with no new tenant in sight) or much more (e.g., if the liquidation could be expected to increase sales volume and revenue enormously, perhaps the landlord would expect to be able to demand that in exchange for permitting a liquidation sale, at least if there is a sufficiently robust rental market to give the landlord leverage).
But from the record presented the tentative ruling is that there was no meeting of minds on the percentage rent issue. So the tentative ruling is that the analysis has to fall back to what rent is "reasonable." In re Section 20 Land Group, Ltd., 261 B.R. 711, 717 (Bankr. M.D. Fla. 2000). See also In re Silicon valley Telecom Exchange, LLC, 284 B.R. 700, 706 (Bankr. N.D. Cal. 2002).
Conclusion as to landlords' motions. The tentative ruling is to set a continued hearing (the same date as the continued status conference set forth below) to determine the dollar amount owed to each landlord. The
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deadline for each landlord to file and serve a declaration with supplemental evidence would be two weeks prior to that hearing, with any responsive declaration and evidence due one week prior.
The tentative ruling is to require evidence on the following issues: (i) calculations: more detail about the calculation of rents allegedly owing, (ii) vertical and horizontal evidence of market rents: Debtor's historical monthly additional rent (percentage of sales) for each of the subject locations, for every month in 2017 and in 2018 through store closing, as well as an average for each year, and evidence about current rental rates per square foot for any new or renewed leases in the same mall in 2018, to assist this Court in determining reasonable rents, and (iii) lockout date: proof whether lock-out date for the Forbes store actually occurred two days before rejection notice.
The parties should be prepared to address whether expedited or regular discovery is necessary or appropriate; whether a different hearing date is preferable; and any other relevant issues.
Memorialization these tentative rulings, and lodging proposed orders incorporating them by reference
This Court intends to prepare and file a Memorialization of Tentative Rulings, with a copy of these tentative rulings for 11/6/18, which the parties can incorporate by reference in any proposed order, to the extent this Court adopts these tentative rulings at the hearing. The Committee is directed to lodge the proposed order on the motion for dismissal etc., and the Starwood/Forbes landlords are directedto lodge the proposed order on their motion to compel payment of rent.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: TBD
Continued status conference: Continue to 12/11/18 at 2:00 p.m., in view of the slightly deferred dismissal requested by Debtor and the Committee. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 9/18/18:
Continue as set forth below. Appearances are not required on 9/18/18.
Current issues. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: TBD
Continued status conference: Continue to 11/6/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Continue as set forth below. Appearances are not required on 8/14/18.
Current issues. This Court has reviewed the debtor's status report (dkt. 203) and other relevant pleadings in this case.
Siena r/s motion. Although the debtor requests that this status conference be continued to the same date and time as the pending motion
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(dkt. 205) by Siena Lending Group, LLC for relief from the automatic stay, that could disrupt the relief from stay calendar. As an alternative, the debtor may seek a consensual or non-consensual brief continuance of Siena's motion to be heard at the same time as the status conference, if that would be more appropriate or convenient for the parties.
B&B Bachrach, LLC Post-Confirmation Status Conference (2:17- bk-15292-NB). The tentative ruling is to continue the post-confirmation status conference to the date and time set forth below to be heard concurrently with the continued status conference in the B&B Liquidating, LLC case.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: TBD
Continued status conference: Continue to 9/18/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Continue as set forth below. Appearances are not required on 6/12/18.
Current issues.
Motion to Extend (1) Time to Assume or Reject Leases and (2) Term of Store Closing Sales (dkt. 172). The tentative ruling is to grant this motion. The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
B&B Bachrach, LLC Post-Confirmation Status Conference (2:17- bk-15292-NB). The tentative ruling is to continue the post-confirmation status conference to the date and time set forth below to be heard concurrently with
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the continued status conference in the B&B Liquidating, LLC case.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: 8/31/18
Continued status conference: Continue to 8/14/18 at 2:00 p.m.
Brief written status report due 7/31/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Continue as set forth below. Appearances are not required on 5/29/18.
Current issues. This Court has reviewed the debtor's status report (dkt. 171), and other related pleadings.
Untimely Status Report and April MOR. This Court's tentative ruling for 5/1/18 (see below) directed the debtor to file a brief status report by 5/15/18, but the debtor did not file a status report until 5/18/18. Further, debtor did not file its April MOR until 5/23/18. The debtor is cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: 8/31/18
Continued status conference: Continue to 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
Current issues.
Background. At a post-confirmation status conference on 4/17/18 for B&B Bachrach (2:17-bk-15292-NB), debtor's counsel discussed the status of that case as well as the B&B Liquidating case. At counsel's request, this Court set a tentative bar date of 6/29/18, but advised counsel that this Court would hold off on issuing the bar date order (and may push the bar date back) pending resolution of the claims/noticing agent issues raised sua sponte by this Court.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to grant the motion on a final basis, as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), the amended budget (dkt. 65), and the second amended stipulation (dkt. 141). The debtor is directed to serve and lodge a proposed order via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Tentatively set as 6/29/18. DO NOT serve any notice at this time (this Court will prepare an order after the claims/noticing issues are resolved)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: continue to the date set forth at the start of this tentative ruling, brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances are not required.
Current issues. This Court has reviewed the debtor's status report (dkt. 78) and the other filed documents and records in this case.
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an a final basis.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on a final basis.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on a final basis.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to grant the motion on a final basis.
Cash Collateral/DIP Financing (dkt. 21, 22). The tentative ruling is to authorize consensual use of cash collateral as modified on the record at the hearing on 2/22/18, the interim order (dkt. 36), and the amended budget (dkt. 65).
Proposed Orders. The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: 7/31/18 DO NOT serve any notice at this time (this Court will prepare an order after the status conference)
Plan/Disclosure Statement*: 8/31/18
Continued status conference: 5/29/18 at 2:00 p.m., brief status report due 5/15/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/22/18:
Appearances required by counsel for the debtor. Other parties in interest are invited but not required to appear (and pursuant to LBR 9075-1, any response may be presented orally).
Telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. As of the time when this tentative ruling has been prepared, there is no proof of service of the debtor's motions. The following tentative rulings are subject to (i) adequate proof of service and (ii) any oppositions presented at or prior to the hearing. In addition, rather than stating at length this Court's reasoning, the following tentative rulings adopt, to the extent relevant, the reasoning of this Court regarding similar motions in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46-47).
Notice/Service. Pursuant to LBR 9075-1(a)(2)(B), this Court has already orally and conditionally granted the debtor's request to shorten time on the motions identified below, subject to the right of any party in interest to object at or before the hearing to the adequacy of notice. With those limitations, the tentative ruling is to find notice adequate and grant the debtor's requests in its motions (e.g., dkt. 5, p.3:3-5) to excuse any requirement for telephonic notice provided that overnight delivery or other permissible expedited service (e.g., personal delivery, or email as permitted by applicable rules) has been delivered no later than 24 hours prior to this hearing to all persons with a pecuniary interest that could be adversely affected by the relief requested in each motion.
Immediate relief. With respect to any immediate relief described below, the tentative ruling is that the debtor has shown sufficient cause for
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such immediate relief under Rule 6003 (Fed. R. Bankr. P.), to the extent applicable, and the other rules and procedures governing relief on an emergency or expedited basis.
Limit Notice Motion (dkt. 3). The tentative ruling is to grant this motion, subject to the following adjustments. First, the Limited Service List must be augmented to include (i) junior lienholder Emerald Capital Funding, LLC ("Emerald") and (ii) the debtor's own bankruptcy counsel (because the motion apparently contemplates that all parties in interest - not just the
debtor - will be authorized to use the Limited Service List). Second, this Court contemplates limitations that parallel this Court's modifications to the parallel order in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 53).
Utilities Motion (dkt. 4). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Tax Motion (dkt. 5). The tentative ruling is to grant the motion on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Management Motion (dkt. 6). The tentative ruling is to grant the motion on the following conditions on an interim basis, with a final hearing at the same time as the continued status conference set forth below. No later than 2/23/18 the debtor must file a declaration of its CFO or other appropriate person certifying that, first, the debtor has taken measures to assure that prepetition debts are not paid out of its existing accounts (e.g., stopping payment on prepetition checks, except to the extent authorized by this court), and second, the debtor is maintaining sufficiently detailed books and records that, if it becomes necessary to analyze the debtor's finances as of the petition date, such analysis will not be impaired by the non-closing of the debtor's prepetition accounts.
Lease Rejection Motion (dkt. 7). The tentative ruling is to grant the motion on a final basis.
Employee Wages Motion (dkt. 8). The tentative ruling is to grant this motion immediately and on a final basis as to the employees, and to grant it as to the retention of Modern HR, Inc. ("HR") either immediately or at a continued hearing if the debtor can provide an offer of proof or evidence that HR's rates are within normal market rates for comparable services.
Store Closing Sale Motion (dkt. 17). The tentative ruling is to approve the retention of Great American Group LLC and Tiger Capital Group
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LLC (collectively, "Liquidation Consultant") subject to the filing, no later than 2/23/18, of a satisfactory statement of Liquidation Consultant's distinterestedness on Local Form F 2014-1.STMT.DISINTEREST.PROF. In addition, the tentative ruling is to authorize the proposed sales of the debtor's inventory and furniture, fixtures and equipment ("FF&E"), free and clear of any liens, claims, encumbrances or other interests of all persons/entities who have been served with the motion, with all such interests to attach to proceeds of such sales, under 11 U.S.C. 363(b) and (f)(1), (2) and (5), for the reasons stated in the motion papers. In addition, the tentative ruling with respect to compliance with nonbankruptcy liquidation laws, restrictions in leases, and abandonment of property is to track the limitations in this Court's interim order on the parallel motion in the Bachrach case (no. 2:17-bk-15292- NB, dkt. 71). In addition, the tentative ruling is to grant all such relief on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Cash Collateral/DIP Financing (dkt. 21, 22). The parties should be prepared to address the following issues. (i) Is there any evidence that the debtor is "unable" to obtain credit by granting a "senior or equal lien" to the lien of Siena Lending Group, LLC ("Siena"), within the meaning of 11 U.S.C. 364(d)(1)(A)? (ii) Why would it be appropriate for this Court to approve a roll- up, cross-collateralization, and other provisions that generally are disapproved (see dkt. 22)? (iii) Why should this Court grant broader relief in
this case than it did in approving a similar motion in the Bachrach case (no. 2:17-bk-15292-NB, dkt. 46, Ex.A, pp.5-9, and dkt. 50)? The tentative ruling is to authorize either consensual or non-consensual use of cash collateral and, if the terms can be modified sufficiently to be acceptable, the proposed DIP financing, on an interim basis, with a final hearing at the same time as the continued status conference set forth below.
Notice of continued hearings. The tentative ruling is to set a deadline of 2/27/18 for the debtor to file and serve a notice of the final hearing on all motions that are only granted on an interim basis, and to set the same deadline for the debtor to file any supplements or amendments to such motions, with deadlines of 3/6/18 for any opposition and 3/13/18 for any reply.
Proposed Orders. This court intends to file these tentative rulings on the docket (with the caption, "Memorialization Of Tentative rulings" or the like). Thereafter, if appropriate, all orders can grant or deny relief "for the reasons stated in the Memorialization Of Tentative Rulings (dkt. ), as
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modified or supplemented on the record at the hearing" (or similar language). The debtor is directed to serve and lodge proposed orders via this court's "LOU" system within 7 days after the hearing date.
In view of the shortened time on the foregoing motions, parties in interest may appear and dispute the foregoing tentative rulings without prior notice to the debtor or the court (contrary to the usual requirements for "tentative rulings" under Judge Bason's Procedures, posted at www.cacb.uscourts.gov).
Deadlines/dates. This case was filed on 2/16/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: March 20, 2018 at 2:00 p.m., status report due 3/6/18. (see order, dkt. 18).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
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Docket 301
Please see the tentative ruling for the Sakurai status conference (calendar no. 21, 11/6/18 at 2:00 p.m.).
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
Movant(s):
Community Bank Represented By Anne K Edwards
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Docket 306
Please see the tentative ruling for the Sakurai status conference (calendar no. 21, 11/6/18 at 2:00 p.m.).
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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4/10/18, 5/8/18, 6/12/18, 6/19/18, 7/10/18, 08/14/18,
9/4/18, 9/18/18, 10/16/18
Docket 1
Revised Tentative Ruling for 11/6/18:
Appearances required.
Current Issues
Chapter 11 Plan (Sakurai dkt. 309, Checkmate dkt. 234, the "Plan"); Disclosure Statement (Sakurai dkt. 310, Checkmate dkt. 235, the "D/S"). Approve the D/S on a final basis, and confirm the Plan, based on the ballot summary (Sakurai dkt. 313) and subject to an offer of proof that the proof of service (Sakurai dkt. 311) should be deemed amended to include service of the Plan, instead of listing the D/S twice. Debtors are directed to lodge proposed orders within 7 days after this hearing (each estate should have an order finally approving the D/S, and a second order confirming the Plan and setting the post-confirmation status conference set forth below).
Motion to Compromise with Community Bank (Sakurai dkt. 301, Checkmate dkt. 226). Grant. Community Bank is directed to lodge a proposed order within 7 days after this hearing.
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). Continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: see above.
Continued status conference: Set post-confirmation status conferences in the Sakurai and Checkmate cases, and the related RS/Fower adversary proceeding, for 12/11/18 at 2:00 p.m., with a brief status report due 12/4/18.
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*Warning: special procedures apply (see order setting principal status conference).
Tentative Ruling for 11/6/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/16/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current Issues
Chapter 11 Plan (Sakurai dkt. .295, Checkmate dkt. 221, the "Plan"); Disclosure Statement (Sakurai dkt. 296, Checkmate dkt. 222, the "D/S"). The parties should be prepared to discuss whether the Plan and D/S fully comply with the Stipulation with the Fresco Parties (D/S, Ex.1, and dkt. 266), including whether the Plan provides for the nondischargeability of the Fresco Parties' claim and the Fresco Parties' right to appoint forensic accountants. In addition, Exhibit C to the disclosure statement does not appear to include the $793,000 account pledged to Citizens Business Bank (the "Bank") or the $400,000 "note owed [by an undisclosed person] in the Sakurai case." D/S, Attachment, p.3:11-14. In addition, periods "A" through "F" on Exhibit C are confusing. In addition, Exhibit F appears to include some printing and other errors.
The tentative ruling is to set a deadline of 10/18/18 for Debtors to file a further amended Plan and amended D/S to correct these issues and lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the D/S and confirmation of the Plan for the same time as the continued status conference (see below). The tentative ruling is that the voting package should include Mr. Sakurai's declaration (Sakurai dkt. 297) but not include any of the exhibits to it, and instead include a note stating that the exhibits are available upon request.
In addition, the tentative ruling is that the Plan must include provisions to safeguard proceeds from the sales of property, liquidation of the bank account pledged to the Bank, and any other assets of the estate. The
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tentative ruling is that any proceeds must be transferred directly from escrow to a bank account from which funds cannot be released absent the signature of Debtors' counsel, upon order of this Court.
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The tentative ruling is to continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: see above.
Continued status conference: Continue the status conferences in the Sakurai and Checkmate cases to 11/6/18 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
Tentative Ruling for 9/18/18:
Appearances are not required.
Current issues.
Fresco Parties' Motions to Convert Cases (dkt. 199 & Checkmate 2:17-bk-22648-NB, dkt. 185). The tentative ruling is to tentatively approve the parties' stipulations (Sakurai dkt. 266 and Checkmate dkt. 208) as settlements of the respective motions under Rule 9019 (Fed. R. Bankr. P.), and to rule that notice of such settlements need not be provided pursuant to Rule 2002(a)(3). The cause for not requiring notice is that the motions to convert were properly served, a hearing was held, the parties who sought to be heard on that matter had an opportunity to be heard, the stipulation does not appear to result in any relief different in degree from what could have been ordered at that hearing, and to the contrary the resolution appears to be better for all creditors (and all other parties in interest) than the alternative of immediate conversion of each case to chapter 7.
Proposed orders: The Fresco Parties are directed to lodge two
separate proposed orders (one for each settlement) via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The
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tentative ruling is to continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: per the parties' stipulation (dkt. 266).
Continued status conference: Continue the status conferences in the Sakurai and Checkmate cases to 10/9/18 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required.
Current issues.
Fresco Parties' Motion to Convert Cases (dkt. 199 & Checkmate 2:17-bk-22648-NB, dkt. 185). The tentative ruling is to grant Fresco's motions to convert the Checkmate and Sakurai cases to chapter 7 for the following reasons.
Gross mismanagement. The tentative finding of fact is that the debtors have grossly mismanaged their estates such that cause exists under 1112(b)(4)(B) to convert their cases. These cases have been pending for nearly a year, since 10/16/17, only very belated and half-hearted investigation or collection activity against Radiology Solutions and Fower - either using legal enforcement or practical steps. For example, at hearings on 11/14/17 and 1/30/18, the debtors maintained their belief that they could recover 100% on the dated receiveables from Radiology Solutions, despite
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this Court's expressed concerns with the debtors' counsel regarding the apparent lack of collection activity based on Checkmate's failure to use the vast panoply of litigation tools available to them, including examinations under Rule 2004 (Fed. R. Bankr. P.), other discovery tools, remedies such as immediately seeking restraining orders and injunctions, and non-litigation approaches such as pressuring Radiology Solutions and Fower by reporting their defaults to Siemens or attempting to use pressure from other suppliers, customers, government regulators, or other persons. All of those avenues should have been explored vigorously, both prepetition and postpetition, and disclosed to parties in interest in these cases.
Other "cause." The debtors appear to have run through vast amounts of money to "purchase" equipment that does not exist, and yet as set forth above they have a very cavalier attitude toward attempting to engage in discovery or collection, while continuing to insist that they expected very substantial recoveries from those sources and/or from equipment (which turned out not to exist). The tentative finding of fact is that these circumstances show not just gross mismanagement but also that the debtors are hiding facts, or they are attempting to run out the clock on possible causes of action against them or transferees of their assets, or both.
The debtors' counter-argument about the best interests of creditors is not persuasive. The debtors argue that under their liquidation analysis (Sakurai, dkt. 240, PDF p. 14, Checkmate, dkt. 194, PDF p. 17) creditors will receive faster and better recoveries if the debtors are permitted to engage in a liquidation through chapter 11, rather than converting these cases to chapter 7. There are several problems with this argument.
First, this Court questions the debtors' projected recoveries in chapter
11. The debtors have been wildly inaccurate (or have intentionally hidden the truth) before, as set forth above. This Court has no faith in the Debtors to adequately disclose and maximize the value of their remaining assets, such as the house in Japan or purported interests in that house. Moreover, this Court is concerned about the debtor's management of whatever is recovered, such as what might happen to proceeds from the sale of real property. This Court recognizes that safeguards can be attempted; but safeguards can also be evaded, and the tentative ruling is that the simplest and best safeguard is to appoint a chapter 7 trustee.
Second, this Court questions the debtor's projected lack of substantial recoveries in chapter 7. The tentative ruling is that the Fresco Parties have
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the better arguments regarding the potential benefits to unsecured creditors in a chapter 7 case (perhaps as much as 80% or more).
Third, supposing for the sake of discussion that the debtors were accurate in their projected recoveries in a liquidating chapter 11 case, and their comparison with projected recoveries in a chapter 7 case, that is not the only consideration. This Court must consider the integrity of the bankruptcy system. Given the debtors' gross mismanagement and this Court's concerns about the debtors' conduct (as described above) it appears that the only adequate safeguard of the integrity of the bankruptcy system is to convert these cases to chapter 7.
Evidentiary Objections (Sakurai, dkt. 233, 252) & (Checkmate 2:17-bk-22648-NB, dkt. 200, 204). The tentative ruling is that the history of this case and this Court's own admonishments to the debtors provides ample support for conversion, so this Court need not resolve the parties' respective evidentiary objections.
Proposed Orders. The Fresco Parties are directed to lodge proposed orders via this Court's LOU system within 7 days of the hearing.
Application to Employ KW Commercial Inland Empire (dkt. 197) and Neiman Realty (dkt. 206). If this Court adopts the tentative ruling set forth above, the tentative ruling is to continue these hearings to the date and time set forth below to allow time for the chapter 7 trustees to weigh in.
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The tentative ruling is to continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: TBD based on the outcome of the Conversion Motions.
Continued status conference: If this Court converts these cases to chapter 7, the tentative ruling is to continue the status conference in the Sakurai and Checkmate cases to 10/9/18 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Continue the status conferences in this case, the related Checkmate case (2:17-bk-22648-NB), and RS/Fower adversary proceeding (2:18-ap-01602- NB) as stated below. Appearances are not required on 8/14/18.
Current issues. This Court does not have any issues to raise sua sponte.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Amended Joint Plan/Amended Joint Disclosure Statement*: TBD at the continued status conference.
Continued status conference: 9/4/18 at 2:00 p.m., to be heard concurrently with Fresco's motions to convert the Sakurai and Checkmate cases to chapter 7. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18 (same as for 6/19/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to provide an update on the status of their negotiations, and
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whether all matters on calendar for today in the Sakurai and Checkmate cases (including the adversary proceeding against Fower and Radiology Solutions) should be continued to 8/7/18 at 2:00 pm., with a brief status report due 7/24/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 186, 187, 188). At the status conference this Court will address changes that need to be made to the amended disclosure statement and amended plan prior to service on creditors.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 186, 187): At the status conference this Court will discuss deadlines for filing an amended disclosure statement and plan, and whether to set hearing(s) on final approval of the disclosure statement and whether to approve the plan.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required by counsel for the debtors but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Joint Plan/ Joint Disclosure Statement proposed by the Sakurais and related debtor Checkmate King Co., Ltd., and supporting declaration (Sakurai dkt. 176, 177, 178). At the status conference this Court will address numerous issues with these documents.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Joint Plan/Disclosure Statement* (dkt. 176, 177): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 48). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Fresco Adversary Proceeding (adv. case no. 2:17-ap-01558-NB), including motion to remand (adv. dkt. 8). The tentative ruling is that this matter will be mooted, assuming that this Court approves the parties' proposed settlement, and therefore this matter should go off calendar. The parties are reminded to file appropriate papers to have this matter dismissed once the settlement is fully implemented.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Dec MOR (dkt. 97):
On page 1 of 34, the MOR reflects $793,000 in cash receipts for the pre-petition Community Bank Sakurai Family Trust savings account, with a notation that Community Bank initially seized, but has since returned, the funds. What is this money from? Is it currently being held? Is it available to pay secured or unsecured creditors?
On page 7 of 34, there is a line item reflecting a $5,000 payment to Mr. Aronson for legal fees. At the status conference on 1/9/18 this court highlighted that the Sakurais had made a similar payment in November for Mr. Aronson's fees and counsel stated that the payment was made in error, and the debtors and their counsel assured this court that this issue would be addressed. By no later than February 7, 2018, Mr. Aronson is directed to file a declaration addressing the status of the $10,000 in legal fees ($5,000 Nov; $5,000 Dec) that he received from the Sakurais.
Turnover of Documents and Information, etc. The parties must be prepared to address what documents and information have been produced by the debtors, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
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Nov MOR (dkt. 83): On page 8 of 34, there is a line item reflecting a
$5,000 payment to Mr. Aronson for legal fees. It is unclear why the Sakurai's are paying Checkmate's counsel for legal fees. What is this payment for?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by at least one of the debtors and their counsel.
Proposed orders: The debtors are directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 42): The debtors' status report fails to suggest any bar date or any deadline for filing a draft plan and draft disclosure statement. The debtors suggest that the Fresco litigation might have to conclude before they can propose plan, but they fail to support any such delay with relevant information about that litigation, nor do they explain how claims estimation and/or a disputed claims reserve would be inadequate to
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address this litigation. See generally 11 U.S.C. 502(c) and Rule 3018(a) (Fed. R. Bankr. P.). Accordingly, the tentative ruling is to fix the deadlines set forth below.
Cash collateral motion (dkt. 8). The tentative ruling is to grant this motion on a final basis, on the same terms as the interim order (dkt. 43).
(b) Utility motion (dkt. 11). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proofs of service (dkt. 18, 19, 21, 22). Service does not appear to be in compliance with this court's orders shortening time because they do not certify that anyone was served via overnight delivery or other expedited
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means.
The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, declaring that such expedited service was actually done, or if that is not true then the tentative ruling is to impose sanctions of $200 on counsel for the debtors and, despite the lack of service, authorize the proposed expenditures of cash collateral and the proposed utility deposits as an interim method of providing adequate protection under 11 U.S.C. 361-366.
Cash collateral motion (dkt. 8). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Utility motion (dkt. 11). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 25).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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Docket 226
Please see the tentative ruling for the Sakurai status conference (calendar no. 21, 11/6/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Movant(s):
Community Bank (secured creditor) Represented By
Anne K Edwards
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Docket 233
Please see the tentative ruling for the Sakurai status conference (calendar no. 21, 11/6/18 at 2:00 p.m.).
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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4/10/18, 5/8/18, 6/12/18, 6/19/18, 7/10/18, 08/14/18
9/4/18, 9/18/18, 10/16/18
Docket 1
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 21, 11/6/18 at 2:00 p.m.).
Tentative Ruling for 10/16/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 3, 10/16/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 18, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 7/10/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 7/10/18 at 2:00 p.m.)
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in the Sakurais'
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bankruptcy case (calendar no. 4, 6/19/18 at 2:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement (dkt. 175, 176).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 177), appear to be identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 186, 187, 188. Counsel are directed to alert this Court and the parties at the hearing if they are not.
For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/12/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 175, 176): At the status conference this Court will discuss appropriate deadlines.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
2:00 PM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required.
Current issues.
Joint Plan/Joint Disclosure Statement (dkt. 165, 166).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 167). are substantially identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 176, 177, 178. For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 5/8/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Joint Plan/Disclosure Statement* (dkt. 166, 167): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 57). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization
2:00 PM
of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt.
90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17- bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
2:00 PM
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
2:00 PM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
2:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent,
2:00 PM
then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
(2) Claim and Delivery; (3) Conversion; (4) Breach of Guaranty;
(5) Fraud; (6) Preliminary Injunction; and (7) Constructive Trust fr. 5/8/18, 6/12/18, 6/19/18, 07/10/18, 08/14/18, 9/4/18, 9/18/18, 10/16/18
Docket 1
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 21, 11/6/18 at 2:00 p.m.).
Tentative Ruling for 10/16/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 3, 10/16/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 18, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 7/10/18 (same as for 6/19/18):
Please see the tentative ruling for the Sakurai status conference (calendar no. 2, 7/10/18 at 2:00 p.m.).
2:00 PM
Tentative Ruling for 6/12/18:
Appearances required.
Current Issues.
Joint Status Report and Notice of Continuances. This Court's 5/8/18 tentative ruling (see below) was not opposed, so it became this Court's actual ruling.
This Court directed (i) Checkmate to file and serve a notice of continuances attaching and incorporating by reference the deadlines in that tentative ruling by 5/7/18, and (ii) the parties to file a brief joint status report by 5/29/18. As of the preparation of this tentative ruling, none of the parties have complied. The parties are cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Motion for TRO & Claim and Delivery (adv. dkt. 10).
Plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") has filed a stipulation (adv. dkt. 30) with defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") for turnover of equipment. But Checkmate has not provided any evidence that it has relief from the automatic stay and consent of the Chapter 7 Trustee in the RS and Fower bankruptcy cases for such turnover (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA). The tentative ruling is to set a deadline of 6/19/18 for Checkmate to file a declaration attaching evidence sufficient to establish those things, and lodge a revised proposed order to approve the stipulation.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time. Continue to 7/17/18 at 2:00 p.m., brief joint status report due 7/3/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Tentative Ruling for 5/8/18:
The tentative ruling is to continue all pending matters in this adversary proceeding to 6/12/18 at 2:00 p.m. for the reason stated below, with a brief joint status report due 5/29/18, and with a deadline of 5/7/18 for the plaintiff to file and serve a notice of continuances attaching and incorporating by reference the deadlines in this tentative ruling (assuming that this Court is not persuaded to depart from this tentative ruling). Appearances are not required on 5/8/18.
Current Issues. This Court has reviewed the parties' status reports (adv. dkt. 24 & 26) and the other filed documents and records in this adversary proceeding.
Motion for TRO & Claim and Delivery (adv. dkt. 10). At the 4/9/18 hearing on this motion, counsel for plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") apprised this Court of the bankruptcy filings of defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA) and requested a continuance of this hearing to allow time to obtain orders granting relief from stay with annulment. In the Joint status report (adv. dkt. 24), Checkmate states that the hearings on the relief from stay motions are scheduled for 5/15/18. Accordingly, the tentative ruling is to continue this motion to the date and time set forth at the start of this tentative ruling.
Siemens Motion to Dismiss (adv. dkt. 27, the "MTD"). Defendant Siemens Medical Solutions USA, Inc. ("Siemens") has properly self- calendared its MTD for 6/12/18 at 11:00 a.m. Siemens anticipates that it may be voluntarily dismissed by plaintiff (see adv. dkt. 24), but if that does not occur then this Court anticipates that the MTD may take 15 minutes or more to hear. This Court's practice is that matters anticipated to take 15 minutes or more are heard on the 2:00 p.m. calendar (not available for self-calendaring, except by permission of this Court). Therefore the tentative ruling is to re- calendar the MTD from 11:00 a.m. to 2:00 p.m., which is concurrent with the other matters in this adversary proceeding that are on today's calendar.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time.
2:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Represented By Vatche Chorbajian
George Tyler Fower Represented By Vatche Chorbajian
Siemens Medical Solutions USA Inc Represented By
Marsha A Houston
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
2:00 PM
Docket 0
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
4:00 PM
Docket 1
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the issues in the order setting this hearing (Lay-Invol dkt. 117; L&B dkt. 370; Max- CA dkt. 142).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
4:00 PM
Docket 1
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the issues in the order setting this hearing (Lay-Invol dkt. 117; L&B dkt. 370; Max- CA dkt. 142).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
4:00 PM
Docket 1
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the issues in the order setting this hearing (Lay-Invol dkt. 117; L&B dkt. 370; Max- CA dkt. 142).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maximum Legal (California), LLP Represented By
Martin J Brill Daniel H Reiss Lindsey L Smith
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer Steven Werth
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 86
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Richard M Garcia Represented By Julie J Villalobos
Movant(s):
Wilmington Savings Fund Society, Represented By
Michelle R Ghidotti Edward G Schloss
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 88
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Richard M Garcia Represented By Julie J Villalobos
Movant(s):
U.S. Bank National Association, as Represented By
Merdaud Jafarnia Drew A Callahan Robert P Zahradka Wendy A Locke
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 49
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 52).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Salvador Molina Ramones Represented By Brian J Soo-Hoo
Movant(s):
HSBC BANK USA, NATIONAL Represented By
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] US BANK TRUST NATIONAL ASSOC
vs
DEBTOR
Docket 31
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
10:00 AM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition a this hearing.
Debtor(s):
Maria Eva Martinez Represented By Stephen S Smyth William J Smyth
Movant(s):
US Bank Trust National Association Represented By
Kristin A Zilberstein
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 140
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Gloria Elisa Galvan Represented By Michael E Clark Nancy B Clark Barry E Borowitz
Movant(s):
Nationstar Mortgage LLC Represented By
Dane W Exnowski Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JB MORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 29
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Juan Carlos Ramirez Represented By Alla Tenina
Movant(s):
JPMorgan Chase Bank, National Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 27
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Dewayne Foster Brown II Represented By Onyinye N Anyama
Movant(s):
Wilmington Savings Fund Society, Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CHAMPION MORTGAGE COMPANY
vs DEBTOR
Docket 32
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Muriel Ann Carr Represented By Julius Johnson
Movant(s):
Champion Mortgage Company Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 31
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 33).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tracy L. Carnes Represented By Barry E Borowitz
Movant(s):
Wells Fargo Bank, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 84
- NONE LISTED -
Debtor(s):
Eva Anderson Represented By Andre A Khansari
Edmond Richard McGuire
Movant(s):
Wilmington Savings Fund Society, Represented By
Kristin A Zilberstein
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 26
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cynthia Denise Taylor Represented By Barry E Borowitz
Movant(s):
U.S. Bank National Association, as Represented By
Angie M Marth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 50
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
John Charles Parker II Represented By Julie J Villalobos
Joint Debtor(s):
Patricia Lynne Parker Represented By Julie J Villalobos
Movant(s):
HSBC Bank USA, National Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 42
- NONE LISTED -
Debtor(s):
Nicholo F Merino Represented By Sundee M Teeple Craig K Streed
Movant(s):
U.S. Bank National Association, as Represented By
Daniel K Fujimoto Robert P Zahradka Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 35
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Patricia Anne Nevels-Perry Represented By Kahlil J McAlpin
Movant(s):
U.S. BANK NATIONAL Represented By Sean C Ferry Theron S Covey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 62
Appearances required. The tentative ruling is to continue this motion for relief from the automatic stay to 1/15/19 at 10:00 a.m. for the following reasons.
Background
Debtor was authorized to make reduced mortgage payments of
$845.68 per month pursuant to this Court's order (dkt. 39) granting Debtor's motion to commence the Loan Modification Management ("LMM") program. That same order provides that Debtor shall continue making monthly payments in that amount until that amount is superseded - e.g., by a "final loan modification amount" (dkt. 39, sec. b.(2)) - and the order also directs Debtor to "file and serve appropriate papers to revise any plan" to reflect the current LMM payments.
Debtor does not dispute that the loan modification was ultimately denied. See dkt. 64, Ex.2. Debtor apparently made the reduced payments of
$845.68/mo. from March through July of 2018, and apparently resumed normal payments of $1,529.99/mo. in August of 2018.
Meanwhile, Debtor's plan (dkt. 48, filed 8/7/18) provides in Class 2 that Movant (referred to as Rushmore Loan Services) will be repaid the prepetition arrears of approximately $51,486.00 (Movant's proof of claim 1-1 lists only
$0.06 more) via monthly payments of $1,050.74, without interest. That plan was confirmed by this Court's order (dkt. 59, 10/11/18).
Analysis
Debtor apparently paid $845.68 per month from March through July of 2018. Movant asserts that Debtor should have paid $1,529.99 per month during that time.
10:00 AM
Movant's assertion is contrary to this Court's order granting Debtor's
motion to commence the LMM program. That order specifically authorizes and directs Debtor to pay the $845.68 amount.
The question is what to do about the shortfall between $845.68 and
$1,529.99 now that the loan modification has been denied. The tentative ruling is as follows.
First, the shortfall does not simply disappear. Rather, pursuant to the order granting the LMM motion, now that the loan modification has been denied Debtor is obligated to file and serve a motion to modify the confirmed plan (a "MoMod") under 11 U.S.C. 1329, to reflect that denial.
Second, one form of MoMod would be to repay that shortfall (on top of repaying the prepetition arrears) over the entire remainder of the Plan's term. Another form of MoMod would be to provide for paying the shortfall over a shorter term, such as the typical period for an adequate protection order (usually six months and occasionally up to double that period). There might be other types of MoMod that would be permissible (e.g., providing for a refinancing or "step up" payments).
Third, what type of MoMod is permissible will depend on whether Movant is adequately protected by the proposed terms of repayment of the shortfall. This is akin to the usual analysis under 11 U.S.C. 362(d), except that unlike the usual situation in which a debtor fails to live up to postpetition obligations, in this case Debtor apparently has lived up to such obligations. Therefore, Debtor's promise of future performance is entitled to greater weight.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lydia G Cardenas Represented By Barry E Borowitz
10:00 AM
Movant(s):
Michael E Clark
Wilmington Savings Fund Society, Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK TRUST COMPANY AMERICAS
vs DEBTOR
Docket 23
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ana R Sosa Represented By
Leon D Bayer
Movant(s):
DEUTSCHE BANK TRUST Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
vs DEBTOR
Docket 47
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Allyson M Theophile Represented By Matthew D. Resnik
Movant(s):
Deutsche Bank National Trust Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL, LLC
vs DEBTOR
Docket 31
Grant the motion (dkt. 31) and approve the parties' stipulation (dkt. 33). Appearances are not required.
Proposed order: Movant is directed to lodge two separate proposed orders (one granting the motion, and another approving the stipulation) via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ryan Gregory Ortiz Represented By Charles J Brash
Joint Debtor(s):
Debra Diane Ortiz Represented By Charles J Brash
Movant(s):
Ditech Financial, LLC Represented By
10:00 AM
Trustee(s):
Abe G Salen
Kathy A Dockery (TR) Pro Se
10:00 AM
#19.00 [CASE DISMISSED ON 5/21/2018]
Hrg re: Motion for relief from stay [RP]
THE BANK OF NEW YORK
vs DEBTOR
Docket 52
Grant in part and deny in part as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request because although Movant checked the box for relief under 362(d)(4),
10:00 AM
the Movant did not provide any evidence that would support a granting of "in rem" relief.
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Myrna Garcia Lorenzo Represented By Peter L Nisson
Movant(s):
The Bank of New York, as Trustee Represented By
Tyneia Merritt
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FREEDOM MORTGAGE CORPORATION
vs DEBTOR
Docket 28
Debtor(s):
Hanan Inas Ijlal Brown Represented By Nathan A Berneman Ali R Nader
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
vs DEBTOR
Docket 61
- NONE LISTED -
Debtor(s):
Christopher David Mercado Represented By Richard McAndrew
Joint Debtor(s):
Alma Cornelia Mercado Represented By Richard McAndrew
Movant(s):
Deutsche Bank National Trust Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 53
- NONE LISTED -
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
Movant(s):
Wilmington Savings Fund Society, Represented By
Todd S Garan
10:00 AM
Hrg re: Motion for relief from stay [RP] NATIONSTAR MORTGAGE, LLC
vs
DEBTOR
Docket 20
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re
10:00 AM
Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fernando Hernandez Pro Se
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
10:00 AM
Trustee(s):
Merdaud Jafarnia
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re
10:00 AM
Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Keith Williams Pro Se
Movant(s):
U.S. Bank National Association, as Represented By
10:00 AM
Trustee(s):
Kelsey X Luu
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 17
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
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exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Julia A Escudero Pro Se
Joint Debtor(s):
Raul Rivera Pro Se
Movant(s):
THE BANK OF NEW YORK Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 16
Appearances required. The parties should be prepared to address whether they will agree to the terms of an adequate protection order, including provisions that will make any future bankruptcy case ineffective to stay any acts against the subject property ("in rem" relief). See Debtor's response (dkt. 20).
Proposed order: If this Court is persuaded to grant such relief, then Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
More specifically, the tentative ruling is that (1) on the present record some form of relief from the automatic stay is required, including in rem relief, because Debtor appears to been involved in a "scheme" to "hinder" or "delay" creditors within the meaning of 11 U.S.C. 362(d)(4), due to the filing of this case on 10/2/18, within a relatively short time after the dismissal on 6/5/18 of the bankruptcy case filed by Francisca Sanchez (2:18-bk-15538-WB); but (2) "relief" from the automatic stay does not necessarily mean "termination" of the stay, and could take the form of an adequate protection order ("APO") that (a) requires monthly payments and (b) provides in rem relief as follows:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
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For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
In other words, if Debtor has the financial ability to cure the arrears and otherwise prosecute this bankruptcy case, then Debtor can do so under an adequate protection order; but Debtor must establish that she has the financial ability to do so. In addition, no future bankruptcy case will affect the property (subject to the limitations in 11 U.S.C. 362(d)(4)), so Debtor and any other person who asserts an interest in the property or who is a signatory to the loan documents cannot continue to file repeated bankruptcy cases simply to delay any foreclosure.
The grounds for such relief are that this Court has the power to grant relief in the form of modifying or conditioning the automatic stay, not just terminating it (11 U.S.C. 362(d)), and the foregoing relief appears to be appropriate in the present circumstances. See generally In re Vazquez, 580
B.R. 526 (Bankr. C.D. Cal. 2017) (even debtor who has excuses for hindering and delaying creditors can be subject to in rem relief); In re Bousheri (Case No. 2:15-bk-11345-NB), dkt. 79 (analogous order, in valuation context, addressing effect of unauthorized transfer of interest in property).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Perla Eva Sanchez Represented By Lionel E Giron
10:00 AM
Movant(s):
Wells Fargo Bank, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JERRY PIKOVER
vs DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
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exclusive possession of such property shall not be stayed. Any
additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cynthia Cabanilla Valenzuela Pro Se
Movant(s):
Jerry Pikover Represented By
Yevgeniya Lisitsa
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 20
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay, to the extent if any that it applies, under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay.
See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Santos N Leiva Pro Se
Movant(s):
Wilmington Savings Fund Society, Represented By
Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NPI DEBT FUND I, LP
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply.Grant the motion under 11 U.S.C. 362(c)
and (j): there is no automatic stay because (a) the debtor's prior case (# 2:18-bk-21958-NB) was dismissed (on 10/29/18) within one year before this case was filed (on 10/30/18), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to the debtor in personam and as to property of the debtor. See In re Hernandez & Jiminez, Case No. 2:11-
bk-53730-NB, Dkt 40.
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB,
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docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ki Y Jang Pro Se
Movant(s):
NPI Debt Fund I, LP Represented By Brian R Nelson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 28
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Tania M Hernandez Represented By Anthony E Contreras
Movant(s):
Capital One Auto Finance, a division Represented By
Cheryl A Skigin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HYUNDAI LESE TITLING TRUST
vs DEBTOR
Docket 30
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Eric S Spruille Represented By Stephen S Smyth
Joint Debtor(s):
Sharon Williams Represented By Stephen S Smyth Andrea Liddick
Movant(s):
Hyundai Lease Titling Trust Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WHEELS FINANCIAL GROUP, LLC
vs DEBTOR
Docket 24
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 26).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Magdalena Avila Represented By Stephen S Smyth William J Smyth
Movant(s):
WHEELS FINANCIAL GROUP, Represented By
Sheryl D Noel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICAN HONDA FINANCE CORP
vs DEBTOR
Docket 11
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Josefina Coldivar Represented By Jasmine Firooz
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 15
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Salvador Ernesto Gomez Represented By Raymond Perez
Joint Debtor(s):
Ruth Beatriz Gomez Represented By Raymond Perez
Movant(s):
Toyota Motor Credit Corporation Represented By
Robert S Lampl
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PARTNERS FEDERAL CREDIT UNION
vs DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ashley Gonzalez Represented By Jennifer Ann Aragon
Joint Debtor(s):
David Masannat Represented By Jennifer Ann Aragon
Movant(s):
Partners Federal Credit Union Represented By Yuri Voronin
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
AMERICREDIT FINANCIAL SERVICES, INC.
vs DEBTOR
Docket 31
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Starling Kennedy Represented By Donna R Dishbak
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Mandy D Youngblood Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ROELY RAMIREZ
vs DEBTOR
Docket 322
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Roely Ramirez Represented By Andrew Goodman Daniela P Romero
10:00 AM
vs DEBTOR
Docket 323
- NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Elizabeth Cardona Represented By Daniela P Romero
10:00 AM
GS WILSHIRE, LLC
vs DEBTOR
Docket 8
Grant in part and deny in part as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
There is no stay. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that
10:00 AM
request because the Movant has not presented evidence of a scheme to delay, hinder, or defraud creditors that involve unauthorized transfers of property or multiple bankruptcy filings, or comparable cause.
Request to impose 180-day bar. The last paragraph of the motion requests, as an alternative to in rem relief, that this Court issue an order barring Debtor from being a debtor in any bankruptcy case for a period of 180 days under 11
U.S.C. 109(g)(1). Any such request should be by separate motion, not part of a motion for relief from the automatic stay. In addition, there is insufficient evidence of a "willful" failure to appear in proper prosecution of this case, within the meaning of the statute.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jungbyul A Lim Pro Se
Movant(s):
GS Wilshire LLC Represented By Agop G Arakelian
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
KB WESTCHESTER BUILDING, LLC
vs DEBTOR
Docket 12
Grant in part and deny in part as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases. Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request because the Movant has not presented evidence of a scheme to delay, hinder, or defraud creditors that involve unauthorized transfers of property or multiple bankruptcy filings, or comparable cause.
10:00 AM
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
MK Apparel,Inc Represented By Young K Chang
Movant(s):
KB Westchester Building, LLC Represented By Walter J Sawicki
10:00 AM
IH6 PROPERTY WEST LP
vs DEBTOR
Docket 9
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Lamar Douglas Pro Se
Movant(s):
IH6 Property West LP, a Delaware Represented By
Agop G Arakelian
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST vs
DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
There is no stay
First, the movant obtained a prepetition unlawful detainer judgment, and the debtor has not satisfied the statutory requirements to remain in possession. See 11 U.S.C. 362(b)(22) and (l)) and (b).
Second and alternatively, the movant obtained a prepetition eviction judgment and writ of possession and Debtor has not distinguished Perl. See In re Perl, 811 F.3d 1120, 1127-28 (9th Cir. 2016) ("We conclude that under California law, entry of judgment and a writ of possession following unlawful detainer proceedings extinguishes all other legal and equitable possessory interests in the real property at issue.").
In addition and in the alternative, the tentative ruling is to grant relief from the automatic stay as provided below.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB,
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docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luisa Campos Pro Se
Joint Debtor(s):
Gonzalo Aguilar Pro Se
Movant(s):
U.S. Bank Trust, N.A., as Trustee for Represented By
Randall D Naiman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 11
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jaime Rojas Lozano Represented By Erika Luna
Joint Debtor(s):
Yolanda Barron Lozano Represented By Erika Luna
Movant(s):
Jaime Rojas Lozano Represented By Erika Luna
Yolanda Barron Lozano Represented By Erika Luna
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 9
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
EMILY GADDI Represented By Thomas B Ure
Movant(s):
EMILY GADDI Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 10
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rosita Bello Represented By
Matthew D. Resnik
Movant(s):
Rosita Bello Represented By
Matthew D. Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CARRINGTON MORTGAGE SERVICES, LLC
vs DEBTOR
Docket 46
Tentative Ruling for 11/27/18 (same as for 10/16/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 48).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jonathan Tolentino Puerto Represented By Onyinye N Anyama
Movant(s):
Carrington Mortgage Services, LLC Represented By
Erin M McCartney Mark S Krause
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA NATIONAL ASSOC
vs DEBTOR
Docket 63
Tentative Ruling for 11/27/18 (same as for 10/9/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 67).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Jefferson Represented By Christopher J Langley Heidi M Cheng Steven P Chang
Joint Debtor(s):
Raquel Jefferson Represented By Christopher J Langley Heidi M Cheng
10:00 AM
Movant(s):
Steven P Chang
HSBC Bank USA National Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PABLO ARTURO CARDOZA
vs DEBTOR
Docket 30
Tentative Ruling for 11/27/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Limited relief. Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate. The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues. Any claims against Debtor or the bankruptcy estate arising from the nonbankruptcy litigation are
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subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Additional analysis:
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for
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trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that these factors weigh in favor of granting relief as set forth above. Most significantly, the litigation involves multiple parties not all of whom are before this Court; and this Court continued this matter so that more comprehesive notice could be provided and any parties in interest could file responses, and no such responses were filed.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Continue to 11/27/18 at 10:00 a.m. for service by Movants of (1) this tentative ruling and (2) the motion papers on all persons listed on the creditor matrix in this case. Appearances are not required on 11/6/18.
Option for shortened time: This Court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant serving all papers via U.S. mail on the day after the current hearing date. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Reasons: Rule 4001(a)(1) (Fed. R. Bankr. P.) provides for service on specified persons and "on such other entities as the court may direct." It appears appropriate to direct further notice in this case because Movants seek to avoid the transfer to debtor, and recover for themselves, the property at 623 W. Tichenor St., Compton, CA 90220, which might be very valuable real estate that could be administered for the benefit of other creditors.
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This Court recognizes that, according to Movants, Debtor wrongfully
obtained title to the property by, allegedly, exerting undue influence on their and Debtor's mother, and they surmise that the father's signature must have been forged. They claim they were thereby deprived them of their share of their inheritance from the parents.
But this Court also notes that their nonbankruptcy complaint (dkt. 32, Ex.1) acknowledges that Debtor took care of their parents when they were ill, and further acknowledges that two mentally ill siblings also live on the property. Id. para. 11, 18. All of that implies that Debtor (or her bankruptcy estate) might have defenses. Movants' complaint also acknowledges (dkt.
32, Ex.1, p.3, para. 15) that there is approximately $150,000 to $250,000 of equity in the property.
This Court also recognizes that, according to Movants, mandatory abstention applies. See 28 U.S.C. 1334(c)(2). But that does not necessarily mean that the automatic stay must be terminated in all respects, including taking property out of this bankruptcy estate, at least without conditions or limitations.
Finally, this Court recognizes that creditors' interests are ably protected by the Chapter 13 Trustee, who is in this Court's experience very diligent about considering possible adverse consequences to creditors. But in this particular case there may be facts that the Chapter 13 Trustee does not know, and in any event both secured and unsecured creditors might wish to be heard on the issues.
For all of the foregoing reasons, the tentative ruling is to continue this matter with a direction to Debtor to provide notice as set forth above.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Martha Martinez Represented By
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Movant(s):
Julie J Villalobos
Jesus Diaz Munoz Represented By Mark J Markus
Pablo Arturo Cardoza Represented By Mark J Markus
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 30
Debtor(s):
Gricelda Valenzuela Represented By Daniel King
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel Megan Porter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 42
Tentative Ruling for 11/27/18 (same as for 10/9/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 46, 49).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Catalina Mejorado Vicia Represented By Stella A Havkin
Movant(s):
HSBC Bank USA, National Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
U.S. BANK, N.A. vs
DEBTOR
Docket 28
Tentative Ruling for 11/27/18 (same as for 10/16/18, 9/18/18 and 8/14/18): Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 31).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Araceli A Castro Represented By Thomas B Ure
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Kelsey X Luu
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF AMERICA, NA
vs DEBTOR
Docket 35
Tentative Ruling for 11/27/18 (same as for 10/16/18):
Appearances required. At the hearings on 9/18/18 and 10/16/18 this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the
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automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria Dilcia Serrano Represented By Raymond Perez
Movant(s):
BANK OF AMERICA, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 29
Debtor(s):
Melba Lourdes Nunez-Cardenes Represented By
Richard McAndrew
Movant(s):
Wells Fargo Bank, N.A. d/b/a Wells Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 83
Tentative Ruling for 11/27/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether they will agree to the terms of an adequate protection order to resolve their remaining disputes as discussed at the hearing on 10/16/18 (see also the debtor's response, dkt. 85).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/16/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) the payment discrepancies as alleged in Debtor's response (dkt. 85), and (b) whether payments were misapplied to the wrong account.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ronald Martinez Represented By Moises A Aviles
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel John Tamburo Megan Porter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Owners Association, Request for order to show cause re sanctions
fr. 10/9/18
Docket 67
Debtor(s):
Gerald Edward Young Represented By Erika Luna
Movant(s):
Gerald Edward Young Represented By Erika Luna Erika Luna Erika Luna
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ALAN S VERTUN, WILLIAM SCHMIDT BARBARA SCHMIDT et al
vs DEBTOR
Docket 40
Tentative Ruling for 11/27/18:
Grant - i.e., terminate the automatic stay, in addition to the relief previously granted (dkt. 50) - for the reasons stated in Movant's reply (dkt. 56).
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Grant in part and deny in part as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
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Modification. Modify the automatic stay under 11 U.S.C. 362(d)(1)&(4) to provide that (a) no future bankruptcy case will have any effect on the subject property (in rem relief, as provided below) but (b) the stay will remain in place in this case for the moment, so that the Chapter 7 Trustee has an opportunity to sell the property, with a continued hearing on 11/6/18 at 10:00 a.m. so that, if the property has not been sold by then, the motion can be considered again.
Any co-debtor stay (11 U.S.C. 1301(c)) is also modified, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is insufficient evidence and notice.
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Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Natalie V Howard Represented By Barry E Borowitz
Movant(s):
Alan S Vertun, William Schmidt and Represented By
Julian K Bach
Trustee(s):
David M Goodrich (TR) Pro Se
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PROF-2013-S3 LEGAL TITLE TRUST II
vs DEBTOR
Docket 66
Appearances required. At the request of the parties, this Court continued this matter for a possible adequate protection order (dkt. 69, dkt. 71). There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alma Jean Anderson Represented By William J Smyth Stephen S Smyth
Movant(s):
PROF-2013-S3 Legal Title Trust II, Represented By
Robert P Zahradka John D Schlotter Dane W Exnowski
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Trustee(s):
Merdaud Jafarnia
Kathy A Dockery (TR) Pro Se
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U.S. BANK, NATIONAL ASSOC vs
DEBTOR
Docket 36
Tentative Ruling for 11/27/18 (same as for 10/16/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current, (b) the alleged discrepancy in the amounts Debtor paid to SPS, and
(c) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wayne Leslie Harpe Represented By Nima S Vokshori
Movant(s):
U.S. Bank, National Association, as Represented By
Merdaud Jafarnia
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Trustee(s):
Kathy A Dockery (TR) Pro Se
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OCWEN LOAN SERVICING, LLC
vs DEBTOR
Docket 48
Debtor(s):
Miguel Serrano Represented By Cynthia Grande
Joint Debtor(s):
Sonia Serrano Represented By Cynthia Grande
Movant(s):
Ocwen Loan Servicing, LLC Represented By
Sheri Stein Charlse Keith Labell
Seth Greenhill Jenelle C Arnold Sean C Ferry Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 20
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gustavo Calvillo Represented By Linda Rose Fessler
Joint Debtor(s):
Cristina Rubio Represented By Linda Rose Fessler
Trustee(s):
Peter J Mastan (TR) Pro Se
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Liquidate the Annuities to Realize Their Cash Surrender Value
Docket 68
Grant (sustain the objection to exemptions) for the reasons stated in the reply of the Chapter 7 Trustee (dkt. 78) to Debtors' response (dkt. 77).
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Roland J. Valdez Represented By Bruce A Wilson
Joint Debtor(s):
Inez M. Valdez Represented By Bruce A Wilson
Trustee(s):
Jason M Rund (TR) Represented By
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Thomas H Casey
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Adv#: 2:17-01485 Gonzalez v. Macmillan et al
fr. 12/5/17, 02/13/18, 3/20/18, 4/17/18, 07/17/18, 08/14/18, 10/16/18
Docket 1
Tentative Ruling for 11/27/18:
Continue to 12/11/18 at 11:00 a.m., per the latest status report (dkt. 56). Appearances are not required on 11/27/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/16/18:
Appearances required. There is no tentative ruling but the parties should be prepared to address the following issues.
Background
Plaintiff filed a motion (adv. dkt. 14) for summary judgment on his first claim for relief (constructively fraudulent transfer) and the second claim for relief (declaratory relief that the purported trust is ineffective to prevent creditors from reaching the assets) in his complaint (adv. dkt. 1). This Court issued an order (adv. dkt. 31) denying summary judgment on the first claim but granting it on the second, for the reasons stated therein - principally the reasons in the Revised Tentative Ruling for 3/20/18 (reproduced below).
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Defendants appealed. The District Court dismissed the appeal as
interlocutory. See adv. dkt. 52, 53. The parties' joint status report states (adv. dkt. 54, p.4, sec.G) that they have executed but not filed a stipulation "that the dismissed appeal can be re-filed as an interlocutory appeal but on the condition that the trial proceed on the remaining fraudulent transfer claim for relief."
Current issues
It is not clear what the parties intend, or what procedural steps this Court should take. Whatever is in the parties' unfiled stipulation presumably will not bind the District Court (or any other court hearing the appeal) in deciding whether to grant leave to appeal this Court's interlocutory ruling, so what do the parties hope to accomplish with their stipulation? Moreover, the parties' stated intention to proceed simultaneously in both this Bankruptcy Court and the District Court usually is not possible because an appeal generally deprives this court of jurisdiction. Cf. Rule 54(b) (Fed. R. Civ. P., incorporated by Rule 7054, Fed. R. Bankr. P.), and compare Rule 8008 (Fed.
R. Bankr. P.). To the extent, if any, that this Court has discretion to grant any relief that would make such dual-tracking possible, is that an appropriate use of judicial resources? On a separate issue, if the plaintiff intends to proceed with the first claim for relief, does the plaintiff plan to amend the complaint to cure the deficiencies in that claim (constructively fraudulent transfer) noted in the tentative ruling for 3/20/18?
The tentative ruling is to continue this status conference to 11/6/18 at 11:00 a.m. with a deadline of 10/23/18 for the parties to file and serve whatever papers they deem appropriate to address the foregoing issues and any other relevant issues at this stage of these proceedings.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
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Continue to 10/16/18 at 11:00 a.m., with a brief status report due 10/2/18.
See status report (adv. dkt. 51). Appearances are not required on 8/14/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Continue to 8/14/18 at 11:00 a.m. as requested by the parties in their joint status report (see adv. dkt. 50), with a brief status report due 7/31/18.
Appearances are not required on 7/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should apprise this court about the status of any appeals or other matters (see dkt. 31, order granting in part plaintiff's motion for summary judgment, and dkt. 35, notice of appeal). The tentative ruling is to set a continued status conference for 7/17/18 at 11:00 a.m., with a brief status report due 7/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/20/18:
Appearances required.
Motion for summary judgment (adv. dkt. 14-18, the "MSJ"); opposition papers (adv. dkt. 22-25); and reply papers (adv. dkt. 26-27). The tentative ruling is to deny in part and grant in part the MSJ, as set forth below.
Legal standards. The legal standards governing motions for summary judgment are well known, do not appear to be disputed by the parties, and need not be repeated in this tentative ruling.
First claim for relief (fraudulent transfer). Although the complaint (adv. dkt.1) asserts fraudulent transfer claims under both California law and the Bankruptcy Code, the MSJ limits this to 11 U.S.C. 548. The MSJ also asserts only constructive, not actual, fraud. See adv. dkt. 14, pp.2:21-3:1.
The complaint alleges less than reasonably equivalent value (11
U.S.C. 548(a)(1)(B)(i)) - namely, transfers by the debtors/defendants for no value from the debtors and/or their revocable trusts (the assets of which apparently could be reached by creditors) to irrevocable trusts. But to establish the elements of a constructively fraudulent transfer the plaintiff must also establish one of three types of insolvency (commonly referred to as "balance sheet," "inadequate capital," or "cash flow" insolvency) or else a transfer to an insider under an "employment contract." See 11 U.S.C. 548(a) (1)(B)(ii)(I)-(IV). There is no allegation about any employment contract, so the plaintiff must establish some type of insolvency.
The MSJ refers to balance sheet insolvency (11 U.S.C. 101(32A)). But the complaint never alleges that type of insolvency, so the plaintiff cannot be granted partial summary judgment as to that element (11 U.S.C. 548(a)(1)(B) (ii)(I)).
The complaint alleges inadequate capital and inadequate cash flow (in language that roughly parallels 11 U.S.C. 548(a)(1)(B)(ii)(II)&(III)). But the MSJ extrapolates that those types of insolvency could be presumed based on the bankruptcy schedules many months after the transfer, and from the sheer
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number of lawsuits and eventual judgments against the defendants and other circumstantial evidence. Those things might (or might not) be persuasive at trial, but they are insufficient to establish a lack of genuine issue of fact.
Second claim for relief (declaratory relief related to nature of the trusts). The complaint (adv. dkt. 1, para. 23) seeks a declaratory judgment (i) that the debtors/defendants are "beneficiaries" of the trusts within the meaning of California Probate Code 15304, (ii) that the benefits the debtors/defendants receive from the trusts are "property of the estate" under 11 U.S.C. 541, and (iii) that the trusts qualify as "self-settled trusts" under California law, which the MSJ uses as shorthand for a trust the assets of which are reachable by creditors.
Various provisions of the Bankruptcy Code define what property is part of the bankruptcy estate:
The bankruptcy estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). It does not include, however, "any power that the debtor may exercise solely for the benefit of another," 11
U.S.C. § 541(b)(1), nor does it include "[p]roperty in which the debtor holds ... only legal title and not an equitable interest." 11
U.S.C. § 541(d). Similarly, the estate does not include property containing "[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law." 11 U.S.C. § 541(c)(2). [In re Cutter, 398 B.R. 6, 18-19 (9th Cir. BAP 2008).]
Under California law:
If the settlor is a beneficiary of a trust created by the settlor and the settlor’s interest is subject to a provision restraining the voluntary or involuntary transfer of the settlor’s interest, the restraint is invalid against transferees or creditors of the settlor. The invalidity of the restraint on transfer does not affect the validity of the trust.
If the settlor is the beneficiary of a trust created by the settlor and the trust instrument provides that the trustee shall pay income or principal or both for the education or support of the beneficiary or gives the trustee discretion to determine the amount of income or principal or both to be paid to or for the
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benefit of the settlor, a transferee or creditor of the settlor may reach the maximum amount that the trustee could pay to or for
the benefit of the settlor under the trust instrument, not exceeding the amount of the settlor’s proportionate contribution to the trust. [California Probate Code 15304]
The California Supreme Court has held that to the extent that the settlor of a trust is also a beneficiary, creditors can reach the property held by the trust:
It is against public policy to permit a man to tie up his property in such a way that he can enjoy it but prevent his creditors from reaching it, and where the settlor makes himself a beneficiary of a trust any restraints in the instrument on the involuntary alienation of his interest are invalid and ineffective. Since [the settlor] was the sole beneficiary, all the property in the trust is subject to the claims of his creditors. [Nelson v. Cal. Trust Co., 33 Cal.2d 501, 501-02 (1949) (emphasis added)]
These principles have been more recently reaffirmed in a decision of the Ninth Circuit Court of Appeals:
[U]nder California law, a settlor of a spendthrift trust cannot also act as beneficiary of that trust (i.e., California law prohibits "self-settled" trusts). See Cal. Prob.Code § 15304(a) (West 1987). California law voids self-settled trusts to prevent individuals from placing their property beyond the reach of their creditors while at the same time still reaping the bounties of such property. See Nelson v. California Trust Co., 33 Cal.2d 501, 202 P.2d 1021,
1021 (Cal. 1949). [In re Moses, 167 F.3d 470, 473 (9th Cir.
1999)]
In addition, the MSJ cites authority that if beneficiaries exercise "excessive" control over a trust then under California law they cannot "shield that trust with an anti-alienation provision lacking true substance." In re Moses, 167 F.3d 470, 473 (9th Cir. 1999) (citation omitted) (emphasis added). See also In re Cutter, 398 B.R. 6, 22 (9th Cir. BAP 2008). MSJ (adv. dkt. 14, p.10:1-14).
The debtors argue that their situation is different from that in Cutter because "the Debtor in Cutter could potentially use all the Trust's principal and income to maintain his standard of living, without limitation" whereas "[t] here is no such provision" in the debtors' trusts. Dkt. 22, p.3:22-26 (italics
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added to case name). That distinction of Cutter (and the other authorities cited above) is unpersuasive.
The MSJ points to the following facts in support of its argument that (i) the debtors are also beneficiaries and (ii) the anti-alienation provisions of the trust lack "true substance." The debtor/defendants do not raise any genuine contrary issues of fact.
The debtors deducted mortgage interest and real estate taxes on their 2015 tax returns. See dkt. 18, p.4:5-9 (and evidence cited therein).
During the "initial period" of the trusts (the earlier of the grantors' deaths or 16 years) the debtors can continue to live in the property rent-free. See Dkt. 18, p.4:10-15 (and evidence cited therein).
During that same period, any net income or excess cash is distributed to the debtors. See Dkt. 18, p.4:16-21 (and evidence cited therein).
The debtors can manage the property as "absolute owners."
See Dkt. 18, p.4:22-28 (and evidence cited therein).
The debtors can loan money to themselves and/or use the property to secure loans to themselves. See Dkt. 18, p.5:2-7 (and evidence cited therein).
During their lifetime, the debtors can make discretionary distributions to their children, and upon their deaths the trust assets are to be distributed to their children. See Dkt. 18, p.5:8-12 (and evidence cited therein).
Based on the foregoing, it appears that the debtors are indeed beneficiaries of the trusts to a large extent, and moreover the anti-alienation provisions of the trust lack "true substance" as that term has been used in the cited authorities. Accordingly, the tentative ruling is to grant the MSJ on the second claim for relief.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20). The parties should be prepared to address whether there are any non- mooted matters left to resolve in this adversary proceeding, if this Court is not persuaded to depart from the foregoing tentative ruling on the MSJ.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/13/18:
Continue this status conference to be concurrent with the hearing on the pending summary judgment motion, which is presently scheduled for 3/20/18 at 11:00 a.m. Appearances are not required on 2/13/18.
This court has reviewed the parties' late-filed joint status report (adv. dkt. 10, 11) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (at the hearing on 12/5/17). See also adv. dkt. 10, 11.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 5) and the other filed documents and records in this adversary proceeding.
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Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
This court recognizes that, at least at this stage, the attorney who filed the answer (dkt. 4) for both trustees of the trust has also executed the Status Report (dkt. 5) on behalf of one of the defendant trustees (the debtor/defendant) asserting that neither of them can consent to this Bankruptcy Court entering a final judgment because third party beneficiaries of the trust allegedly have a right to have their rights litigated "outside of this venue." Counsel for the answering defendants should be prepared (a) to explain whether this is a Stern objection or something else and (b) whether both answering defendants or only one of them takes this position, and if the former, why he did not execute the status report on behalf of both of them.
Counsel for the plaintiff should be prepared to address whether the plaintiff contends that there are no additional parties who need to be joined, and why.
Mediation. The plaintiff suggests in the Status Report (adv. dkt. 5) that mediation, if any, should not be ordered before dispositive motion(s) are heard, which the plaintiff anticipates will be by 3/1/18. The tentative ruling is to revisit the issue of mediation after that date.
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Deadlines: This adversary proceeding has been pending since 9/26/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 3/1/18 Expert(s) - deadline for reports: 2/20/18
Expert(s) - discovery cutoff (if different from above): 3/1/18 Dispositive motions to be heard no later than: 3/13/18 Joint Status Report: 1/30/18
Continued status conference: 2/13/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 4/10/18 Pretrial conference: 4/17/18 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 4/19/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 4/23/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By
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Robert S Altagen
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Docket 206
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Summer Joy Lake Represented By Veronica T Barton
Trustee(s):
Wesley H Avery (TR) Represented By David M Goodrich
Howard M Ehrenberg
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Docket 184
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Summer Joy Lake Represented By Veronica T Barton
Trustee(s):
Wesley H Avery (TR) Represented By David M Goodrich
Howard M Ehrenberg
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[Filed by Menchaca & Company LLP, Accountant]
Docket 185
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Summer Joy Lake Represented By Veronica T Barton
Trustee(s):
Wesley H Avery (TR) Represented By David M Goodrich
Howard M Ehrenberg
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fr. 6/7/18, 08/07/18, 9/18/18, 9/26/18, 10/23/18, 11/6/18
Docket 41
Tentative Ruling for 11/27/18 (same as for 11/6/18):
Appearances required. The parties should be prepared to address whether they have reached a settlement, or whether this Court should make oral findings of fact and conclusions of law on some or all issues and/or set a posttrial briefing schedule.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/23/18:
Appearances required. The parties should be prepared to proceed with trial.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/26/18:
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Appearances required. At the hearing on 9/18/18, this Court was persuaded to make this hearing a pretrial conference. This Court has reviewed the parties' joint pretrial stipulation (dkt. 58). The parties should be prepared (1) to confirm that they have reviewed Judge Bason's posted Procedures (available at www.cacb.uscourts.gov), under the "Trial practice" section, and
(2) to address scheduling the trial day.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Specially set a trial and continued status conference for 9/26/18 at 9:00 a.m., in view of the order excepting these proceedings from any automatic stay that might otherwise apply in Mr. Hill's bankruptcy case (see dkt. 56, Ex.A).
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If one or more parties assert that they are unavailable on that date, then this Court will address whether to select an alternative date. In addition, the parties should be prepared to address whether this Court should approve the pretrial order proposed by the United States Trustee (dkt. 52, 53), what evidence they expect to present, and any other matters appropriate to be addressed at a pretrial/status conference.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 8/7/18:
Continue to 9/18/18 at 2:00 p.m., and vacate the trial that is scheduled to commence on 8/15/18 at 9:00 a.m., in view of the automatic stay arising from the filing of the bankruptcy petition of Mr. William G. Hill (Case No. 1:18-
bk-11914-VK). Appearances are not required on 8/7/18.
Analysis: First, although this Court has located authority that proceedings under 11 U.S.C. 110 are within the police and regulatory power exception to the automatic stay, that conclusion may be subject to dispute, and Mr. Hill (and the Office of the United States Trustee) have not had the opportunity to brief that issue. See In re Hernandez, 66 Collier Bankr.Cas.2d 1022 at n.9 & accompanying text (Bankr. D. Colo. 2011). See also In re Dingley, 852 F.3d 1143 (9th Cir. 2017) (civil contempt proceedings exempted from automatic stay when intended to effectuate court's public policy interest in deterring litigation misconduct).
Second, regardless whether the automatic stay applies, the tentative ruling is that continuing this matter is in keeping with the spirit of the "breathing spell" that bankruptcy is supposed to afford. This Court recognizes that the debtor may be very much in need of whatever funds could be owed to him by Mr. Hill, but any delay from the automatic stay is unlikely to last long.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/7/18:
Appearances required. The parties have raised a number of disputed issues, including issues of credibility (attorney Leslie Richards, Esq. blaming former attorney William G. Hill and vice versa), that appear to require an evidentiary hearing. The parties are directed to address when this Court should schedule such a hearing.
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In addition, the parties should be prepared to address whether 11
U.S.C. 110 can encompass liability against an attorney, as argued by the United States Trustee ("UST"). See dkt. 41, pp.2, 7-9, & nn.2 & 8). The parties should also be prepared to address whether this Court should grant any additional time for the UST to file additional or amended papers with respect to Ms. Richards.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Johnnie L. Fields Represented By Leslie Richards
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 102
Grant all of the requested relief, as further set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The tentative ruling is to issue an order, based on the record before this Court (see dkt. 102, 104, 108, 111):
holding each of (a) Amos Wellington, (b) Kousha Berokim, Esq., and (c) Berokim & Duel P.C. (collectively, "Respondents") in civil contempt;
awarding Movant $5,215 in fees plus $202.50 in costs for a total of
$5,417.50, payable by Respondents jointly and severally; without prejudice to Movant seeking any additional awards of fees and costs as they may be incurred;
directing Respondents, by mandatory injunction, to take all steps necessary or advisable to dismiss their Lawsuit (as defined in the motion, dkt. 102);
holding that, under binding precedent of the Court of Appeals for the Ninth Circuit, all acts taken in violation of the automatic stay, including all proceedings in the Lawsuit since the filing of the bankruptcy petition on 11/4/2017 are void ab initio; and
setting a status conference for 1/15/19 at 11:00 a.m. to address any outstanding issues such as collection procedures, any additional coercive or compensatory measures, etc., subject to any earlier or later self- calendared date that Movant is hereby authorized to set by 14 days' notice served on Respondents via U.S. mail and filed with this Court.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Letitia Louise Wellington Represented By Sanaz S Bereliani
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
11:00 AM
Adv#: 2:18-01212 Graner et al v. DeCoster et al
fr. 9/4/18,10/9/18
Docket 1
Tentative Ruling for 11/27/18:
Appearances required, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 10/9/18, Defendants did not appear, and this Court was persuaded to take a flexible approach to whether Plaintiff would pursue default judgments, or mediation, or other avenues. The docket does not reflect any activity since that time. Should this status conference be continued? Should this adversary proceeding be dismissed for lack of prosecution?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Appearances required, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address
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why neither party has lodged a mediation order (via this Court's "LOU" program) as required by the adopted tentative ruling for 9/4/18. Cf. adv. dkt. 7 (belated request for mediation).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Appearances required. The court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the
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parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 9/10/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 6/22/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/27/18. Expert(s) - deadline for reports: 12/4/18
Expert(s) - discovery cutoff (if different from above): 12/11/18 Dispositive motions to be heard no later than: 12/18/18.
Joint Status Report: n/a
Continued status conference: 10/9/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Defendant(s):
Douglas Lawrance DeCoster Pro Se
Elsa Diane DeCoster Pro Se
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Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
Plaintiff(s):
Kieran Graner Represented By Stephen B Goldberg
Sharon Graner Represented By Stephen B Goldberg
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
11:00 AM
Adv#: 2:18-01158 Duff v. Quinn
fr. 08/07/18
Docket 1
Tentative Ruling for 11/27/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address a new discovery deadline and other revisions to this Court's scheduling order (adv. dkt. 12). See Joint Status Report (adv. dkt. 14).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Appearances required. The court has reviewed defendant/debtor Quinn's unilateral status report (dkt. 7) and the other filed documents and records in this adversary proceeding. Counsel for the plaintiff/creditor Duff is directed to address why no status report was executed by plaintiff.
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
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The parties are directed to address any outstanding matters of (a)
venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 8/24/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 5/24/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 10/8/18. Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: 11/27/18. Joint Status Report: 11/13/18.
Continued status conference: 11/27/18 at 11:00 a.m.
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Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kevin James Quinn Represented By John F Wolcott
Defendant(s):
Kevin James Quinn Pro Se
Plaintiff(s):
James T Duff Pro Se
Trustee(s):
David M Goodrich (TR) Pro Se
11:00 AM
Adv#: 2:18-01233 Pachulski v. Young et al
Docket 10
Appearances required. The court has reviewed the parties' joint status report (dkt. 19) and the other filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative
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ruling is to set a deadline of 12/11/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 7/23/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 3/30/19. Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/19/19.
Continued status conference: 4/2/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused:TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
11:00 AM
Defendant(s):
Jeffery Young Pro Se
Conal Doyle Represented By
M. Jonathan Hayes
Wilshire Law Firm, PLC Represented By
M. Jonathan Hayes
Babak Bobby Saadian Represented By
M. Jonathan Hayes
Neifert Khorshid Represented By
M. Jonathan Hayes
Plaintiff(s):
Richard M Pachulski Represented By James KT Hunter
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Adv#: 2:17-01503 Wellgen Standard LLC v. Maximum Legal (California), LLP et al
and (2) Turnover of Property of the Estate Pursuant to 11 U.S.C. § 542 fr. 12/19/17, 03/06/18, 3/20/18, 5/1/18, 6/26/18, 07/17/18
Docket 1
Tentative Ruling for 11/27/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the status of the purported settlement as indicated in the Request for Status Conference (adv. dkt. 68), as well as on the record at the hearing in the bankruptcy case on 10/24/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Appearances Required. The parties should be prepared to discuss when this Court should set relevant discovery dates and other deadlines.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
This court anticipates posting a tentative ruling at a later time. [NOTE: no tentative ruling was posted; instead this Court issued its
memorandum decision denying Wellgen's motion to dismiss (adv. dkt. 50).]
Tentative Ruling for 5/1/18:
Appearances required.
Motion to Dismiss (dkt. 24). At the hearing on 3/20/18, this Court delivered its oral tentative ruling to deny the motion but, due to the Court's heavy calendar that day, could not afford the parties an opportunity to present oral arguments in response. This Court lifted the stay of discovery and continued the matter to this date to allow the parties an opportunity to attempt a consensual resolution, or present arguments for or against the tentative ruling.
Deadlines. If this Court sticks with its tentative ruling not to dismiss the complaint, the parties should be prepared to discuss relevant discovery dates and other deadlines.
This adversary proceeding has been pending since 10/17/17. Discovery cutoff (for completion of discovery): TBD Expert(s) - deadline for reports: TBD
Expert(s) - discovery cutoff (if different from above): TBD Dispositive motions to be heard no later than: TBD
Joint Status Report: 6/12/18
Continued status conference: 6/26/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
Appearances required.
Motion to Dismiss. At the hearing on 3/6/18, this court continued the matter for the parties to review relevant authority on the "unfinished business doctrine" and consider the implications of that authority on this proceeding. This Court has reviewed the parties' status reports (dkt. 39, 41), which effectively are briefs, and the parties are directed to address (a) whether further briefing or discovery is needed, either as to the Teitelbaum Case or any other matter, (b) whether the range of possible outcomes could include any in which the underlying clients (or any other parties) could be prejudiced (e.g., if any party presently before this Court is denied a recovery in this proceeding, would that party have any ability to seek recovery from the underlying client on a different theory?) and, if so, whether such persons need to be joined in this proceeding, and (c) whether to bifurcate the Teitelbaum Case from other matters and render a decision as to the former after oral argument and/or set deadlines for discovery or other procedures (see, e.g., the list of deadlines set forth in paragraph "(3)" of this Court's tentative ruling for 12/19/17, reproduced below).
Continued hearing/status conference: 5/29/18 at 1:00 p.m. Brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required. This Court has reviewed the parties' status reports (adv. dkt. 28, 29) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. The issues raised in paragraph "(1)" of this Court's tentative ruling for 12/19/17 (reproduced below) appear to have been addressed (see adv. dkt. 28, 29) or waived/forfeited by parties who have not expressly addressed them.
Mediation. The parties are directed to report on the status of the 2/27/18 mediation. If the mediation was not successful, the parties should be prepared to argue the merits of the motion to dismiss filed by Advocate Capital, Inc. (adv. dkt. 24, the "MTD") and related papers (e.g., adv. dkt. 30, 34). To the extent that the foregoing does not resolve the parties' litigation, this Court anticipates setting deadlines for discovery and possibly other matters (see paragraph "(3)" of this Court's tentative ruling for 12/19/17, reproduced below).
Continued status conference: 5/29/18 at 1:00 p.m. Brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 9) and the other filed documents and records in this adversary proceeding. The tentative ruling is to excuse the parties from any Rule 26
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compliance at this time (Fed. R. Civ. P. 26, incoroprated by Fed. R. Bankr. P. 7026), as requested by certain of the parties. In addition, the tentative ruling is as follows (the parties need not repeat their responses in the status report unless there is some change to those responses).
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
The tentative ruling is to set a deadline of 1/5/18 for the parties to agree on a mediator whose schedule is consistent with the needs of this matter and lodge mediation order(s) (if the parties are unable to agree on a single order they may lodge competing orders and Judge Bason will decide among them or issue his own, although it should be possible for the parties to agree on a mediator).
Deadlines: This adversary proceeding has been pending since 10/17/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
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Discovery cutoff (for completion of discovery): 5/14/18 Expert(s) - deadline for reports: 5/18/18
Expert(s) - discovery cutoff (if different from above): 5/25/18 Dispositive motions to be heard no later than: 7/10/18
Joint Status Report: 3/27/18
Continued status conference: 4/10/18 at 2:00 p.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Maximum Legal (California), LLP Pro Se California Attorney Lending II, Inc. Represented By
Richard W Labowe
Maximum Legal, LLC Pro Se
Todd C. Wakefield Pro Se
Joseph Martin Barrett Represented By Damion Robinson
Richard Pachulski Represented By James KT Hunter
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Plaintiff(s):
Wellgen Standard LLC Represented By Faye C Rasch
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Docket 93
- NONE LISTED -
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
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Docket 5
Appearances required by counsel for the debtor and by the debtor(s) themselves
Current issues.
Lack of Status Report or other progress
Debtor was ordered to file a Status Report by 11/13/18 (see dkt 4). No such report has been filed.
Debtor was ordered to serve a copy of this Court's order setting this status conference and file a proof of service. See dkt. 4. No such proof of service appears on the docket.
The docket does not reflect any activity by Debtor except for an odd declaration (dkt. 11) by Debtor's President stating that "no balance sheet, statement of operations, or cash-flow statement has been prepared" for Debtor. In other words, none of the usual motions (cash collateral, payroll, utilities, etc.) have been filed.
The tentative ruling is to dismiss this case with a 180 day bar for willful failure to appear in proper prosecution of this case. 11 U.S.C. 109(g)(1).
United States Trustee's Motion to Dismiss
If this case is not dismissed as provided above, the tentative ruling is to continue this status conference to the same date and time as the pending motion of the United States Trustee to dismiss this case (dkt. 16).
Deadlines/dates. This case was filed on 10/19/18.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference (if this case is not dismissed): 12/11/18 at 1:00 p.m., brief status report due 12/4/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
MK Apparel,Inc Represented By Young K Chang
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Docket 7
Appearances required by counsel for the debtor and by the debtor(s) themselves
Current issues
This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 10/22/18.
Bar date: 2/8/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD.
Continued status conference: 2/5/19 at 1:00 p.m., brief status report due 2/1/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By
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Michael Jay Berger
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Docket 26
Please see the tentative ruling for the status conference (calendar no. 4, 11/27/18 at 1:00 p.m.)
Debtor(s):
Benjamin Saeedian Represented By Raymond H. Aver
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Docket 9
Tentative Ruling for 11/27/18:
Appearances required. There is no tenative ruling, but the parties should be prepared to address the following issues:
Current issues.
Application to employ Raymond H. Aver (dkt. 26) - The parties should be prepared to discuss whether proposed counsel is disinterested given that they are general counsel to Rabenu Enterprises, LLC (see U.S. Trustee's opposition, dkt. 32, and Debtor's reply, dkt. 47).
Source of funds re retainer agreement - In their opposition, the U.S. Trustee raised the question of what the source of the funds for Debtor's retainer agreement is (dkt. 32). Debtor's reply provides that the source of the funds are "Saeedian's and his spouse's earnings and/or contribution from third parties." (dkt. 47, PDF p. 11). Who is this third party? Would the funds be a gift or a loan?
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (timely served, dkt. 24).
Plan/Disclosure Statement*: TBD
Continued status conference: 1/8/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/16/18:
Continue as set forth below. Appearances are not required on 10/16/18.
Current issues. This Court has reviewed the debtor's status report (dkt. 39) and has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (timely served, dkt. 24).
Plan/Disclosure Statement*: TBD
Continued status conference: 11/27/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by
Tentative Ruling for 9/18/18:
Continue as set forth below. Appearances are not required on 9/18/18.
Current issues. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (timely served, dkt. 24).
Plan/Disclosure Statement*: TBD
Continued status conference: 10/16/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Court has reviewed the docket, the debtor's amended schedules (dkt. 33), and monthly operating report no. 1 (dkt. 20, for mo. ending 6/30/18). What is the $660 "miscellaneous expense" reported on p.5? Why was that not explained in the MOR?
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (timely served, dkt. 24).
Plan/Disclosure Statement*: TBD
Continued status conference: 9/18/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 7/17/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
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Current issues. This Court has reviewed the debtor's filed status report (dkt. 17) and the other filed documents in this case.
Secured claims. Why does the debtor's bankruptcy Schedule D (dkt. 18 at PDF p.11) list $0 in secured claims (not even a disputed claim?) even though the status report (dkt. 17) states that the case was filed to stop foreclosure? How can creditor and this Court rely on the accuracy of the bankruptcy schedules in view of such inconsistency?
Income. The debtor's bankruptcy Schedule I (dkt. 18 at PDF pp.19-20) lists a total of $100/mo. in income taxes, medicare and social security. It lists $0 for net income from operating a business (line 8a) despite listing multiple businesses with alleged income: "YB Design, Inc.," "Management of Rabenu Enterprises, LLC," "Babysitting services," and
"Cosmetic Sales." It fails to comply with the instructions in line 8a to "Attach a statement for each ... business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." The debtor appears to be ignoring the requirements to provide disclosure as to his own income and expenses and, under this Court's order (dkt. 9, para.3), to provide equal disclosure with respect to his spouse and their businesses. How can creditors and this Court rely on the accuracy of the bankruptcy schedules and future compliance with orders of this Court in view of such non-compliance?
Deadline for compliance. The tentative ruling is to set a deadline of 7/31/18 for the debtor to file amended bankruptcy schedules correcting not only the foregoing deficiencies that this Court has identified but also any other deficiencies that the debtor and his spouse and the debtor's counsel identify after carefully reviewing the documents that the debtor has filed. If in future this Court discovers other non-compliance with the debtor's obligations to provide accurate disclosures and to comply with this Court's orders, this Court may order the dismissal or conversion of this bankruptcy case, or other remedies.
Deadlines/dates. This case was filed on 6/21/18.
Bar date: 9/24/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 8/14/18 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
This court anticipates posting a tentative ruling at a later time.
Debtor(s):
Benjamin Saeedian Represented By Raymond H. Aver
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Docket 7
Tentative Ruling for 11/27/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. Debtor's September Monthly Operating Report (dkt. 50), lists a total of $2,900 for "personal expenses." What are these expenses?
Deadlines/dates. This case was filed on 7/11/18.
Bar date: 10/29/18 (dkt. 26, timely served dkt. 28)
Plan/Disclosure Statement*: TBD
Continued status conference: 1/8/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/16/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues. Debtor still has not lodged interim or final orders approving the use of cash collateral, or a final order approving her budget. Why not?
Deadlines/dates. This case was filed on 7/11/18.
Bar date: 10/29/18 (dkt. 26, timely served dkt. 28)
Plan/Disclosure Statement*: TBD
Continued status conference: 11/27/18 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Court has reviewed the debtor's filed status report (dkt. 42) and the other filed documents in this case.
Motion of U.S. Trustee ("UST") to dismiss or convert (dkt. 21). The debtor claims to have come into compliance (dkt. 41). Does the UST have any outstanding compliance issues?
Budget motion (dkt. 15) and supplemental declaration of non- debtor spouse Jose M. Juarez (dkt. 37). Grant on a final basis. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Cash collateral motion (dkt. 14, 16). The adopted tentative ruling for the 8/14/18 hearing (reproduced at calendar no. 7, 9/18/18 at 1:00 p.m.) directed the debtor to file an order granting the motion on an interim basis.
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No such order has been lodged. Why not? Subject to a satisfactory answer, the tentative ruling is to grant the motion on a final basis, on the same terms as it was granted on an interim basis. Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 7/11/18.
Bar date: 10/29/18 (dkt. 26, timely served dkt. 28)
Plan/Disclosure Statement*: TBD
Continued status conference: 10/16/18 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has reviewed the debtor's filed status report (dkt. 17) and the other filed documents in this case.
Budget motion (dkt. 15). Grant on an interim basis, with a final hearing concurrent with the continued status conference (see below), and a deadline of 8/21/18 to file declaration(s) regarding the income of the debtor's spouse (see below). Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Debtor's spouse's income. The debtor's bankruptcy Schedule I reports that the debtor's spouse is a self-employed construction contractor, but that the spouse only earns $1,500/mo. in net income. Dkt. 1, at PDF p.32, line 8a. This Court takes judicial notice that there is considerable
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construction activity in this geographic area. Why is that income not higher?
In addition, there is no attached statement showing gross income, expenses, and the calculation of net income. That is contrary to the instructions for line 8a, and to this Court's order that for reporting purposes any spouse is to be treated as equivalent to the debtor (dkt. 6, para.3).
Deadlines/dates. This case was filed on 7/11/18.
Bar date: 10/29/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 9/18/18 at 1:00 p.m., brief status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
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Docket 8
Tentative Ruling for 11/27/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 46) and other relevant documents.
Failure to Serve Bar Date Order (dkt. 25). Once again, the bar date order has not been served. But in view of Debtor's substitution of new counsel, the tentative ruling is to set yet another new bar date as set forth below.
Advantage Realty Group Attempted Sale Properties. The parties should be prepared to address the status of any contemplated marketing and sale of properties.
Deadlines/dates. This case was filed on 6/11/18.
Bar date: to be re-set to 2/8/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD.
Continued status conference: 2/5/19 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 10/2/18:
Appearances required. There is no tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 46) and other relevant documents.
Failure to Serve Bar Date Order (dkt. 25). The order directs the debtor to serve all parties in interest no later than 7/16/18 but no proof of service appears on the docket. Why not? The tentative ruling is to set a new bar date of 12/7/18 (the debtor should not serve any notice at this time; this Court will prepare and issue the order after the hearing).
Application to Employ Hector Perez/Advantage Realty Group (dkt. 33). There is no tentative ruling, but the parties should be prepared to address (1) the issues raised in the opposition by Crescent Capital Holding LLC (dkt. 45); (2) whether the debtor is seeking to employ Mr. Perez, or Advantage Realty Group, or both; and (3) the absence of Local Form 2014-1 (required by Judge Bason's posted procedures, available at www.cacb.uscourts.gov).
Deadlines/dates. This case was filed on 6/11/18.
Bar date: to be re-set see above.
Plan/Disclosure Statement*: TBD.
Continued status conference: 10/16/18 at 1:00 p.m., brief status report due 10/4/18
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Appearances required by counsel for the debtor and by the debtor itself.
Current issues. This Court has reviewed the debtor's status report (dkt. 18) and other relevant documents.
Status Report. Debtor used an old form of status report. Judge Bason's current posted procedures require the use of local form F
2081-1.1.C11.STATUS.RPT. Counsel is directed to review Judge Bason's posted procedures and to use the appropriate form status report in future.
Motion for relief from automatic stay. There is no tentative ruling, but the debtor and Crescent Capital Holding LLC should be prepared to address the issues raised in the motion (dkt. 17) and debtor's response (dkt. 21) regarding the Las Flores property, including the previous grant of "in rem" relief against the property, and whether the debtor has provided sufficient evidence of insurance on the property.
Deadlines/dates. This case was filed on 6/11/18.
Bar date: 9/14/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/28/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 9/18/18 at 1:00 p.m., brief status report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Motiv8 Investments, LLC Represented By Kevin Tang
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fr. 10/17/18, 10/23/18
Docket 4
Tentative Ruling for 11/27/18:
Please see the tentative ruling for the status conference (calendar no. 8, 11/27/18 at 1:00 p.m.).
Tentative Ruling for 10/23/18:
Please see the tentative ruling for the status conference (calendar no. 2, 10/23/18 at 10:00 a.m.).
Tentative Ruling for 10/17/18:
Subject to (1) confirming notice per this Court's order shortening time (dkt. 10), (2) addressing this Court's concerns in that order, and (3) any objections at the hearing, the tentative ruling is to grant the motion (dkt. 4) on an interim basis, subject to the conditions set forth below, with a final hearing on 11/27/18 at 1:00 p.m., and a deadline of 11/2/18 for the movant to file and serve a notice of the final hearing. Appearances required on 10/17/18.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
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Minimum adequate protection
In addition to the postpetition security interests that are automatically
provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to
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attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C.
506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
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Debtor(s):
JDS Hospitality Group LLC Represented By Christopher J Langley Steven P Chang
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Docket 1
Tentative Ruling for 11/27/18:
Appearances required.
Current issues
Cash collateral motion (dkt. 4). This Court has reviewed the supplemental declarations of Kenneth Chung and Rhonda Chung (dkt. 38). Those declarations provide that in the event Debtor lacks the funds necessary to make the required property tax payments, Rhonda Chung will "personally pay any short fall [o]f the Debtor to pay these taxes or, any portion of those taxes, if any, that has not otherwise been approved by the Court as an authorized Cash Collateral expense." (Rhonda Chung decl, para. 7). Would these funds be a loan or a gift? Is Rhonda Chung financially able to provide such a sum?
Creditor First Choice Bank reporting requests: In its opposition to the cash collatera motion, First Choice Bank requests that Debtor be required to provide additional reporting to insure cash collateral is not misued (dkt. 58). Does Debtor object to any of these recommendations? If so, on what grounds?
Order on cash collateral. Debtor is directed to lodge a proposed final order approving the use of cash collateral, incorporating the terms of the interim order plus any additional requirements as noted above, via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Utility motion. Debtor's status report (dkt. 49) states that this motion will be withdraw, either orally or in writing. Debtor should file a written withdrawal, so that the docket is clear.
Deadlines/dates. This case was filed on 10/14/18.
Bar date: TBD.
Plan/Disclosure Statement*: TBD
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Continued status conference: 1/15/19 at 1:00 p.m., with a brief status report due 1/8/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/23/18:
Appearances required.
Current issues
Cash collateral motion (dkt.4). Subject to any objections at the hearing, the tentative ruling is to authorize the use of cash collateral to a limited extent, on a further interim basis, with a final hearing at the same time as the continued status conference (see below). What specific use of cash is authorized will depend on any supplement filed prior to the hearing and how the debtor and other parties in interest address the following issues: (i) payment of employment taxes and other withholdings, (ii) payment of income taxes, (iii) payment of sales taxes on room rentals, as well as on food, beverages, and other taxable items, and (iv) adequacy of cash flow, both actual and projected.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 10/14/18.
Bar date: TBD.
Plan/Disclosure Statement*: TBD
Continued status conference: 11/27/18 at 1:00 p.m., with a status report on the local form due 11/13/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/18:
Appearances required.
Current issues
Payroll motion (dkt. 5). As noted in this Court's order setting this hearing (dkt. 10), this Court is concerned about whether this is a self-created emergency. In addition, the parties should be prepared to address the jobs of each person who is proposed to be paid (dkt. 7, Ex.6), whether any of them are "insiders" (11 U.S.C. 101(31)), and how they will be paid if the checks do not clear and other sources of revenue do not come through. Subject to adequately addressing those issues, and (1) confirming notice per this Court's order shortening time (dkt. 10), (2) addressing this Court's concerns in that order, and (3) any objections at the hearing, the tentative ruling is to grant this motion.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Cash collateral motion (dkt.4). The tentative ruling is to grant this motion, subject to the caveats set forth in the tentative ruling for calendar no. 2 (10/17/18 at 9:00 a.m.).
Deadlines/dates. This case was filed on 10/14/18.
Bar date: TBD.
Plan/Disclosure Statement*: TBD
Continued status conference: 11/27/18 at 1:00 p.m., brief status report due 11/20/18.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
JDS Hospitality Group LLC Represented By Christopher J Langley Steven P Chang
1:00 PM
Docket 59
- NONE LISTED -
Debtor(s):
Ricardo Edmundo Lengua Represented By John A Harbin
Joint Debtor(s):
Pamela Lorraine Lengua Represented By John A Harbin
1:00 PM
Docket 42
- NONE LISTED -
Debtor(s):
Ricardo Edmundo Lengua Represented By John A Harbin
Joint Debtor(s):
Pamela Lorraine Lengua Represented By John A Harbin
1:00 PM
Docket 57
Grant the motion (docket no. 57) on an interim basis, subject to the conditions set forth below, with a final hearing on 12/11/18 at 1:00 p.m., and a deadline of 11/29/18 for the movant to file and serve a notice of the final hearing.
Appearances are not required on 11/27/18.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to
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remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that
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the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Ricardo Edmundo Lengua Represented By
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John A Harbin
Joint Debtor(s):
Pamela Lorraine Lengua Represented By John A Harbin
1:00 PM
Docket 6
Tentative Ruling for 11/27/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Motion to Use Cash Collateral. Grant on an interim basis, as set forth in the tentative ruling in calendar no. 11 (11/27/18 at 1:00 p.m.).
Proposed refinance. At the status conference on 10/16/18, Debtors' counsel anticipated filing a motion for a refinance very shortly thereafter, and the tentative ruling for that date set forth various items that Debtor would need to address. No such motion is on the docket. The refinance motion was supposed to supersede the proposed plan and dislosure statement, and as noted in the tentative ruling for 10/16/18 those documents are incomplete and confused. See also dkt. 65 (objection of Ditech Fin. LLC). Are debtors and their counsel properly prosecuting this case?
The tentative ruling is to continue this Status Conference with a warning to Debtors and their counsel that if they do not prosecute this case then it likely will be dismissed with a bar against being a debtor again, or converted to chapter 7, or this Court may impose other remedies.
Dates/Deadlines. This case was filed on 5/28/18.
Bar date: 9/4/18 (timely served, dkt. 23, 25)
Plan/Disclosure Statement*: N/A
Continued status conference: 1/15/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/16/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Cout has reviewed debtor's status report (dkt. 50) and other relevant pleadings.
Plan (dkt. 47) and Disclosure Statement (dkt. 48). These documents are incomplete and confused. But the tentative ruling is that there is no need to proceed with these documents if Debtors are going to proceed with a proper motion to refinance and pay all creditors in full (as stated in their status report).
Proposed refinance. The claims register lists total claims fo
$419,929.77 as of the petition date (of which $366,270.15 are listed as secured and $150.29 as priority). The proposed refinance would generate loan proceeds of $463,000. This appears to be sufficient to pay all claims, probably including postpetition interest, although perhaps not including 100% of asserted administrative expenses. Counsel for the debtor should be prepared to address (i) the form of motion he intends to file, (ii) whether that motion will seek authority to pay unsecured claims, and (iii) whether unsecured claims will be paid out of escrow or by some other means and, if the latter, who will hold the net proceeds after payment of secured claims.
Dates/Deadlines. This case was filed on 5/28/18.
Bar date: 9/4/18 (timely served, dkt. 23, 25)
Plan/Disclosure Statement*: N/A
Continued status conference: 11/27/18 at 1:00 p.m. No written status report required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Continue to the date and time set forth below. Appearances are not required on 8/14/18.
Current issues. This Cout has reviewed debtor's status report (dkt. 38) and other relevant pleadings.
This Court does not have any issues to raise sua sponte.
Dates/Deadlines. This case was filed on 5/28/18.
Bar date: 9/4/18 (timely served, dkt. 23, 25)
Plan/Disclosure Statement*: file by 9/25/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 10/16/18 at 1:00 p.m. Brief status report due 10/2/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Appearances required by counsel for the debtor and by the debtor themselves.
Current issues. This Court has reviewed the debtors' status report (dkt. 14), and the other filed documents and records in this case.
May MOR (dkt. 18). The MOR purports to cover the period from 5/28/18 (the petition date) to 5/31/18, but is essentially blank, including the section for disclosure of existing insurance coverage (dkt. 18, pdf p. 5). Debtors should be prepared to address (i) whether they have insurance coverage on their residential real property (and any other asset requiring insurance); and, if they do (ii) whether they read the MOR and understood it prior to signing.
Case Status Report (dkt. 14).
Budget Motion. The status report says that a budget motion is not required by Judge Bason's procedures (dkt. 14, pdf p. 3), but that is not correct. See Judge Bason's Procedures, Section VII.F ("Judge Bason requires the use of local forms F 2081-2.2.MOTION.BUDGET and F
2081-2.2.ORDER.BUDGET"). Did counsel actually review the posted procedures? The tentative ruling is to set a deadline of 6/28/18 to file and serve a budget motion.
Consumers' confidential information. The status report states that the debtors do not have possession, custody, or control of consumers' confidential information (dkt. 14, pdf p. 10), but this Court questions whether that is accurate. What about customer lists from Hey Baby Sales, Inc.? Do the debtors claim any rights to those lists? (e.g. if the case were converted to a chapter 7 case, a sale of the debtors' interest in the company took place, and the buyer wanted the customer lists, would the debtors agree they could not retain or use the lists because the lists are owned by the company?).
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The debtors should be prepared to address what steps they will take to protect confidential consumer information, and whether a consumer privacy ombudsman is required (11 U.S.C. 332).
Deadlines/dates. This case was filed on 5/28/18.
Bar date: 9/4/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/25/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/14/18 at 1:00 p.m., brief status report due 7/31/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricardo Edmundo Lengua Represented By John A Harbin
Joint Debtor(s):
Pamela Lorraine Lengua Represented By John A Harbin
1:00 PM
Docket 6
Continue to 3/26/19 at 1:00 p.m. (subject to going off calendar if a final decree has been entered before that time). Appearances are not required on 11/27/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Teresa Dominguez Aguilar Represented By Onyinye N Anyama
8:30 AM
with creditor Real Time Resolutions Agent For New York Bank Mellon
Docket 32
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony De La Rosa Represented By Antonio John Ibarra
Joint Debtor(s):
Angelica Leticia De La Rosa Represented By Antonio John Ibarra
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 26
- NONE LISTED -
Debtor(s):
Lucia Camargo Represented By Tom A Moore
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Devin Smith Represented By
Devin Sawdayi
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 41
Appearances required.
There is no tentative ruling, but the parties should be prepared to address whether Debtor's proposed modification truly will result in 100% payment of the mortgage arrears and 100% payment of general unsecured claims, as Debtor claims. True, Debtor's math is somewhat difficult to follow and might be incorrect; and Debtor appears to be capable of paying creditors on a much more accelerated schedule. See dkt. 51 (latest bankruptcy Schedules I&J, showing 3,064.36 in monthly net income). But if it is true that Debtor's plan will pay 100% of all allowed claims, what is the Chapter 13 Trustee's objection? Is the Trustee arguing that paying so much less than the current disposable income is risky (because of the possibility of a future loss of income) and therefore constitutes a lack of good faith? See 11 U.S.C. 1325(b)(1)(A) (payment of less than all projected disposable income is permissible if plan proposes to pay 100%), and see In re Sunahara, 326 B.R. 768 (9th Cir. BAP 2005) (even when requirements of section 1325(b) do not apply, good faith requirement still applies).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Daebie V. Tatco Represented By
8:30 AM
Trustee(s):
William G Cort
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 0
Appearances required. The tentative ruling is (1) to continue this claim objection to 2/21/19 at 8:30 a.m., and meanwhile (2) order Debtor and the uninsured employers benefits trust fund ("Claimant") to mediation, to include, if possible, all other parties in interest, including Jorge Antonio Gomez Lopez ("Lopez") and any insurers, with a deadline of 12/11/18 to lodge a proposed mediation order.
Analysis:
Based on the papers filed by the parties (dkt. 30, 32, 33), as well as the other filed papers and records of this Court (e.g., dkt. 16, 20, 22), the parties' disputes appear ripe for mediation. There are numerous issues that might be decided in favor or against Debtor, Claimant, and Lopez. All of those issues probably are risky and expensive to litigate.
Preclusion from disallowance of Lopez' claim
As Debtor points out, this Court issued an order (dkt. 22) disallowing Lopez' claim. True, as Claimant points out, there might be grounds file a motion for reconsideration of that order. But that is far from certain and the docket does not reflect that any such motion has been filed.
Claimant argues that this Court' disallowance of Lopez' claim should not have any claim or issue preclusive effect because there was no evidentiary hearing nor any analysis by this Court of the response that, Claimant points out, Lopez filed (albeit untimely). But it is far from certain whether preclusion applies: in general, even default judgments have a preclusive effect, and the precise scope of preclusion has not been fully briefed by the parties.
Possible proceedings before Workers Compensation Appeals Board (the "Board")
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Claimant asserts that the Workers Compensation Appeals Board can and should adjudicate the issues, notwithstanding the fact that (i) no motion has been filed seeking relief from the automatic stay (11 U.S.C. 362(a)) for proceedings in that forum, (ii) the Board might (or might not) be bound by the preclusive effect of this Court's disallowance of Lopez' claim, (iii) the Board might (or might not) be bound by the prelusive effect of the Superior Court's grant of summary judgment in favor of Taylor, (iv) the Board might (or might not) be bound by Lopez' apparent admission in his own complaint in Superior Court that Taylor, not Debtor, was the general contractor (see dkt. 32, Ex.D, para.4), and (v) even if the Board has no constraints on its consideration of the issues, Claimant points out that the Board could reach a wide range of final determinations based on the full panoply of circumstances - e.g., that Debtor was Lopez' employer, or that Debtor was a co- employer with Taylor, or that Debtor was not Lopez' employer at all. In addition, there might be litigation over the Board's ability to join all parties; there might be appeals from whatever the Board decides; there might be complications from the roles of any insurers; etc.
In other words, all parties appear to have many battles to fight before they
can prevail, and many ways that they could lose, and meanwhile the cost of litigation might make any victory Pyrrhic. Mediation seems the best approach, and this Court has the power and authority to order mandatory mediation.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ronald G Sanchez Represented By David S Hagen
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 65
Appearances required. There is no tentative ruling, but Debtors are directed to address the issues raised in this Court's order setting this hearing (dkt. 72). In addition, the Chapter 13 Trustee is requested to address those issues.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charlton Harold Cotillier Represented By Kevin T Simon
Joint Debtor(s):
Ashley Jean Sparks Represented By Kevin T Simon
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 30
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Delores Parker Represented By Nima S Vokshori
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 71
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues set forth below.
Analysis
No power to reinstate automatic stay
The general rule is that, once the automatic stay is terminated, it cannot be reinstated. See In re Canter, 299 F.3d 1150, 1155 n.1 (9th Cir. 2002).
Possible power to seek reconsideration
Notwithstanding the foregoing, it might be possible to seek relief under Rule 60(b) (incorporated by FRBP 9024). See, e.g., In re Gladhill, 76 F.3d 1070, 1078-80 (10th Cir. 1996); In re Camacho, 361 B.R. 294, 299-300 (1st Cir. BAP
2007)).
Excusable neglect, or other cause for relief under Rule 60(b)
The parties have not fully briefed the legal standards. Debtor appears to be proceeding under a theory of excusable neglect. The creditor asserts that Debtor has not offered any actual excuse, including her failure to communicate with the creditor and causing it to incur attorney fees.
It is true that Debtor has had many "bites at the apple." After substantial prepetition defaults Debtor filed this bankruptcy case and thereby obtained an opportunity to cure the prepetition arrears. But then the creditor established grounds for an adequate protection order ("APO") and Debtor defaulted three times under the APO, and when she failed to cure after the last notice of default this Court terminated the automatic stay.
Debtor has provided evidence of a period of decreased income and a debilitating injury (a severe ankle break), and some evidence that she will be back at work at higher pay. She also offers to pay $9,434.40 which she asserts is enough to "bring the default current through November 2018" (dkt. 71, p.5:2-3). But as the creditor points out this does not cover attorney fees (although Debtor
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has offered to pay those fees, too).
Debtor addressed whether funds would be available to pay all attorney fees in full, immediately. Nor has Debtor disclosed the source of the funds (presumably Debtor is not "robbing Peter to pay Paul" - i.e., taking money that should be used to pay unsecured creditors; but there is no assurance of that). Even if Debtor can cure all defaults under the APO, including immediate payment of all attorney fees, Debtor would only be back to the position of promising (under the APO and her chapter 13 Plan) to cure prepetition arrears over time and remain current in postpetition monthly payments, and Debtor has a very poor track record of living up to that promise. How can Debtor provide greater assurances than her past record would suggest?
Conclusion
This Court recognizes that the consequences to Debtor of not granting relief appear to be very severe: she may lose her property to foreclosure, and even if she filed another bankruptcy case to protect the property it might be subject to an additional lien that would have been avoided in this case (see dkt. 71, p.4:13-14), and instead of making payments for five years she would have to almost double that period, which is a very long time to make payments.
Nevertheless, for the reasons stated above, this Court is very concerned whether there are sufficient factual and legal grounds to grant relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jennifer Melissa Follis Represented By Matthew D. Resnik
S Renee Sawyer Blume
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
8:30 AM
Docket 144
- NONE LISTED -
Debtor(s):
James Kevin King Represented By Steven L Bryson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 137
Appearances required. This Court's order setting this hearing (dkt. 151) specified that the purpose is to determine whether it is appropriate to issue an order to show cause ("OSC") against Mr. Bryson regarding his billing judgment as Debtor's Counsel (11 U.S.C. 330) and whether he is engaged in litigation for an improper purpose (Rule 9011, FRBP). The tentative ruling is that, if this Court is not persuaded that the existing record is sufficient to discharge the OSC, then this Court will set a deadline of 1/8/19 for Mr. Bryson to file and serve on Debtor and the Chapter 13 Trustee a declaration addressing all outstanding matters related to those issues, and hold a continued hearing on 1/24/19 at 8:30 a.m.
Background
To date, Mr. Bryson has been awarded $14,216 in supplemental fees.
See dkt. 42, 55, 61, 67, 72, 78, 86, 90, 101, 112, 118, 124. Currently, Mr.
Bryson seeks an additional $1,920 in supplemental fees. See dkt. 137. Many of the supplemental fees involve services Mr. Bryson rendered regarding the property located at 329 E. Gage Avenue, Los Angeles, CA 90003 (the "Gage Property"), which is 1/3 owned by Debtor according to his bankruptcy schedules. Dkt. 16.
Unauthorized response
The OSC provides, in part:
To save further expenses to the estate, and so that all parties in interest and this Court can better understand the issues before any final briefing, Debtor’s Attorney is directed not to file any documents related to any fee applications until otherwise directed by this Court. At the hearing, if this Court’s concerns are not adequately addressed, this Court anticipates issuing an order to show cause
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(“OSC”) why fees and expenses previously paid should not be
disgorged and/or why any pending or anticipated fee and expense applications should not be denied, and that OSC will include a briefing schedule. [Dkt. 151, p.2 (emphasis in original)]
Notwithstanding that direction, Mr. Bryson has filed an objection (dkt. 155) to issuance of any OSC. He claims (dkt. 155, p.3:26-27) that he "only attempts to provide an explanation pertaining to Dkt. No. 149 [i.e., the relief from stay matters, not his fees]."
The title of his own document belies this assertion. The title is "Objection to Proposed Issuance of Order to Show Cause (OSC) Re: Why Fees And Expenses Previously Paid Should Not Be Disgorged And/Or Why Any Pending Or Anticipated Fee And Expense Applications Should Not Be Denied." Dkt. 155.
The tentative ruling, however, is to excuse Mr. Bryson's non-compliance with the direction not to file any documents relating to his fee applications. It is understandable that an attorney whose billing judgment and motivations are being questions could not restrain himself from doing so.
Whether he can bill the bankruptcy estate for preparing that document is a separate issue. That will be one of the issues that this Court anticipates taking up at the hearing on the OSC.
Legal standards for fee awards
An attorney employed under 11 U.S.C. 327 is entitled to "reasonable compensation for actual, necessary services rendered." 11 U.S.C. 330(a)(1)(A). The Bankruptcy Code sets forth several factors to consider whether fees were reasonable, including: (1) the time spent on such services; (2) the rates charged for such services; (3) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; and (4) whether the services were performed with a reasonable amount of time commesurate with the complexity, importance, and nature of the problem, issue, or task addressed. 11 U.S.C.
330(a)(3). In general, Courts must not allow compensation for "unnecessary duplication of services," or "services that were not reasonably likely to benefit the debtor's estate or necessary to the administration of the case." 11 U.S.C. 330(a)
(emphasis added). In a chapter 13 case, such as this, a debtor's attorney may be compensated "for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of
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such services to the debtor and other factors set forth in this section." 11 U.S.C. 330(a)(4)(B).
Whether Mr. Bryson requested compensation for actual, necessary services Based on this Court's review of the twelve supplemental fee applications
filed in this case, Mr. Bryson has billed at least 22 hours for services rendered in relation to the Gage Property, which would result in fees of $8,800. It is not clear what, if any, benefit to the bankruptcy estate or Debtor is derived from the Gage Property.
The record does not appear to include evidence of how much net profit (if any) the Gage Property generates. Debtor would only be entitled, apparently, to a fraction of any such rents, or proceeds of any sale of the property, but that too is unclear because Debtor's alleged interest in the Gage Property has been characterized in multiple ways on the record.
Initially, the Gage Property was scheduled as a 1/3 interest valued at
$100,000. Dkt. 16 at 8. Later, the value of Debtor's interest in the Gage Property allegedly increased to $138,333. Dkt. 45. But on March 10, 2017, a Motion to Abandon the Gage Property (the "Motion to Abandon") was filed because Debtor's interest in the Gage property allegedly is "burdensome and of inconsequential value to the estate" because Debtor holds a one-sixth interest and another one-sixth interest must be probated" to effectuate transfer of title to a third party. Dkt. 92. Despite being pending for 18 months, without objection, the Motion to Abandon has never been set for a hearing and no order on it has been lodged. To the contrary, Mr. Bryson has continued to seek fees related to selling the Gage Property. Dkts. 108, 137.
Based on the foregoing record, this Court questions whether Mr. Bryson has used appropriate billing judgment in connection with the Gage Property.
More generally, the concerns with the Gage Property lead this Court to question whether appropriate billing judgment has been used in connection with all other matters in this case.
Legal standards under Rule 9011
Under Fed. R. Bankr. P. 9011, an attorney, by signing filed papers, certifies a number of things including that the arguments and factual assertions are "not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." (Emphasis
8:30 AM
added.) The Rule includes further details about what is required of attorneys, and what procedures are required for any OSC under the rule.
Whether Mr. Bryson has made arguments and representations to this Court for any "improper purpose"
This Court previously set out the background related to the Motion for Relief from Stay, dkt. 132, and the Motion to Amend Judgment (the "Reconsideration Motion"), dkt. 138, in its Order Denying the Reconsideration Motion. Dkt. 149. Mr. Bryson currently seeks $640 in fees related to his work on the Response to the Motion for Relief from Stay(the "Response"). Dkt. 137 at 3.
The tentative ruling is to overrule Mr. Bryson's (unauthorized) written objection (dkt. 155) to issuance of any OSC. The merits of the issues he raises can be addressed at the hearing on the OSC, after he has had an opportunity to address this Court's concerns more fully.
Issues to be addressed
The tentative ruling is that Mr. Bryson should address all fees - not just those related to the Gage Property - and address whether his services and billing meet the standards under 11 U.S.C. 330 and Rule 9011. His analysis should expressly include cost/benefit considerations, including what analysis he made (before incurring any fees) regarding the then-current and future potential cash flow from the Gage Property (rental revenues minus expenses), as well as the prospects for selling the Gage Property and obtaining proceeds from the sale. His cost/benefit analsis should also include the likely benefits of the relief from stay litigation. In all of this analysis, he should be careful to distinguish between
benefit to the bankruptcy estate, (b) benefit to Debtor, and (c) benefit to Debtor's spouse.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
James Kevin King Represented By Steven L Bryson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 127
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether the default judgment in the state court action has been vacated as contemplated in the Stipulation (dkt. 148, p.3, para.5) and whether there is a need to continue to pursue a hearing on the Order to Show Cause.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
James Kevin King Represented By Steven L Bryson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 77
- NONE LISTED -
Debtor(s):
Didra L Brown Represented By Sanaz S Bereliani
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 78
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling is that, although the copy of the first page of the promissory note (dkt. 93) provides adequate evidence that a valid claim exists, Debtor's concern appears to be whether the claimant is in fact the assignee of the claim - i.e., who has standing and/or is the real party in interest to enforce the claim. That is not just a "technical" requirement, because if the wrong party is paid (particularly on any nondischargeable debt), and if mis-paid funds cannot be quickly repaid without cost, then Debtor might have to pay the same claim twice and/or incur the costs of litigation and damages from attempting to sort out the resulting mess. For that reason, the tentative ruling is that evidence of the chain of assignments of this debt must be provided. See generally, In re Veal, 450
B.R. 987 (9th Cir. BAP 2011).
For these reasons, the tentative ruling is to continue this hearing to 12/20/18 at 8:30 a.m. with a deadline of 12/6/18 for the claimant to file and serve a supplemental declaration with evidence of the chain of assignments, and a deadline of 12/13/18 for Debtor to file any objection to that evidence.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
8:30 AM
Debtor(s):
Didra L Brown Represented By Sanaz S Bereliani
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 80
Continue to 12/20/18 at 8:30 a.m. to address the following issues. Appearances are not required on 11/29/18.
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and
8:30 AM
until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Didra L Brown Represented By Sanaz S Bereliani
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 22
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Migan Murray Represented By Andrew Moher
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 14
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Irisbeth Flores Represented By
D Justin Harelik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 14
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alberto Calleros Represented By
Rene Lopez De Arenosa Jr
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/2/18
Docket 45
- NONE LISTED -
Debtor(s):
Robert E Read Represented By Donna R Dishbak
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 44
- NONE LISTED -
Debtor(s):
Robert E Read Represented By Donna R Dishbak
Movant(s):
Robert E Read Represented By Donna R Dishbak
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 79
Debtor(s):
Luis Alfonso Duran Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Joint Debtor(s):
Alejandra Janeth Campos Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Movant(s):
Luis Alfonso Duran Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Alejandra Janeth Campos Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 06/07/18, 6/28/18, 8/2/18, 9/27/18, 10/25/18
Docket 63
Debtor(s):
Boaz Tribelsky Represented By Michael F Chekian
Movant(s):
Boaz Tribelsky Represented By Michael F Chekian Michael F Chekian Michael F Chekian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 107
Tentative Ruling for 11/29/18 (same as for 9/27/18)
Grant, and dismiss this case for both of the alternative reasons stated in the motion papers, and due to the lack of any filed response by the debtors.
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Oswaldo Barba Represented By
James D. Hornbuckle
Joint Debtor(s):
Jeanne Teran Represented By
James D. Hornbuckle
Movant(s):
FRANCHISE TAX BOARD Represented By
8:30 AM
Trustee(s):
Suman Mathews
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 44
Debtor(s):
Randall Allen Rush Represented By Kahlil J McAlpin
Joint Debtor(s):
Jervonia Monique Rush Represented By Kahlil J McAlpin
Movant(s):
Randall Allen Rush Represented By Kahlil J McAlpin Kahlil J McAlpin
Jervonia Monique Rush Represented By Kahlil J McAlpin Kahlil J McAlpin
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 10/25/18
Docket 33
Debtor(s):
Mae E. Wood Represented By
James D. Hornbuckle
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 26
- NONE LISTED -
Debtor(s):
Mae E. Wood Represented By
James D. Hornbuckle
Movant(s):
Mae E. Wood Represented By
James D. Hornbuckle
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 10/25/18
Docket 19
Tentative Ruling for 11/29/18
Grant. This Court expressly finds that Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections, so any limitation on fees in the tentative ruling for 10/25/18 is hereby vacated. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/25/18
Continue to 11/29/18 at 8:30 a.m. to address the following issues. Appearances are not required on 10/25/18.
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For
8:30 AM
example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nicole Leesuvat-Anderson Represented By
8:30 AM
Trustee(s):
Andrew Moher
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 33
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carlos Dino Bohl Represented By
Ramiro Flores Munoz
Movant(s):
U.S. Bank National Association Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 65
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Norma Amanda Mis De Hernandez Represented By
Guy R Bayley
Movant(s):
JPMorgan Chase Bank, National Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 29
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Patricia Ana Chavez Represented By William G Cort
Movant(s):
The Bank of New York Mellon f/k/a Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 44
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Shakirim Dequesha Brown Represented By David H Chung
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 10
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Frank Padilla Represented By
Erika Luna
Movant(s):
Frank Padilla Represented By
Erika Luna Erika Luna
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK TRUST COMPANY AMERICAS
vs
DEBTOR (S)
Docket 40
Tentative Ruling for 12/4/18 (same as for 10/2/18, and 8/7/18 except telephonic appearances encouraged):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Victor Hugo Anaya Represented By Erika Luna
10:00 AM
Joint Debtor(s):
Nora Leticia Anaya Represented By Erika Luna
Movant(s):
Deutsche Bank Trust Company Represented By Sheereen Middleton Keith Labell
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 29
Tentative Ruling for 12/4/18
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 11/6/18, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 31).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to a continuance or agree to the terms of an adequate protection order (see the debtor's response, dkt. 31).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Laura Longley Represented By Erika Luna
Movant(s):
Wilmington Savings Fund Society, Represented By
John D Schlotter Heather D Bock Dane W Exnowski Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, N.A.
vs
DEBTOR (S)
Docket 42
Tentative Ruling for 12/4/18
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court has authorized the sale of the subject property (see Order, dkt. 68). The parties should be prepared to provide the Court with information re the status of the sale, and any other matters relevant to this motion for relief from the automatic stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court has authorized the sale of the subject property (see Order, dkt. 58)
10:00 AM
subject to certain conditions requested by the secured creditor. Since then, Debtor has filed a new motion for authority to sell real property (dkt. 63). The parties are directed to address whether this motion should be granted, whether the hearing should be further continued to permit the sale of the property to close, or any other matters relevant to the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 7/10/18 this Court was persuaded to continue this matter for the parties to attempt to negotiate an agreed adequate protection order. No such order has been lodged, but meanwhile this Court has authorized the sale of the subject property (see Order, dkt. 58) subject to certain conditions requested by the secured creditor. The parties are directed to address whether this hearing should be further continued to permit the sale of the property to close, or any other matters relevant to the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18
Grant as provided below. Appearances are not required.
10:00 AM
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alejandro Hernandez Castanon Represented By Jacqueline D Serrao
Joint Debtor(s):
Guadalupe Griselda Inda Represented By Jacqueline D Serrao
Movant(s):
HSBC Bank USA, N.A. Represented By Sean C Ferry Theron S Covey
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
REDIGER INVESTMENT MORTGAGE FUND, LLP
vs DEBTOR
Docket 38
Debtor(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Movant(s):
Rediger Investment Mortgage Fund Represented By
Misty A Perry Isaacson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CALIBER HOME LOANS, INC.
vs DEBTOR
Docket 28
Debtor(s):
Jodee Elizabeth Shipley Represented By Jeffrey J Hagen
Movant(s):
Caliber Home Loans, Inc. Represented By Christina J O Can Guner
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JAIN 2012 GIFT TRUST DBA MIRADA GROUP
vs DEBTOR
Docket 73
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
Movant(s):
Jain 2012 Gift Trust DBA Mirada Represented By
Martin W. Phillips
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 32
Tentative Ruling for 12/6/18 (same as for 11/6/18)
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 34).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Billy Lawson Jr Represented By Brad Weil
Movant(s):
WELLS FARGO BANK, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
Docket 32
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the Court's order setting the hearing (dkt.39).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shaquandway Bates Represented By Justin D Graham
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 119
Deny. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Reasons: This Court's order setting this hearing (the "OST," dkt. 121) directed Debtors to file and serve declarations, no later than noon on 12/3/18, addressing why they did not seek relief sooner (before the eve of foreclosure); whether they have purchased a vehicle while their case was dismissed; whether they will have to modify their confirmed chapter 13 Plan to afford the vehicle payments; etc. As of the preparation of this tentative ruling, the day after that deadline, no such declarations have been filed.
Debtors have not adequately addressed why everyone else should have to address the issues on very shortened time, and yet they should not have to address critical issues on similarly shortened time that has been caused by their own failure to seek relief sooner. This appears to be a "self- created emergency," which would permit Debtors to obtain the advantages of bankruptcy (staying a foreclosure sale) without addressing the concerns that led to dismissal with a bar (apparently excessive expenditures on a vehicle).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
10:00 AM
Debtor(s):
Michael Dermont Hill Represented By Daniel King Thomas B Ure
Joint Debtor(s):
Regina Delorse Hill Represented By Daniel King Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WHEELS FINANCIAL GROUP, LLC
vs DEBTOR
Docket 24
Tentative Ruling for 12/4/18 (same as for 11/27/18)
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 26).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Magdalena Avila Represented By Stephen S Smyth William J Smyth
Movant(s):
WHEELS FINANCIAL GROUP, Represented By
Sheryl D Noel
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 27
Debtor(s):
Dewayne Foster Brown II Represented By Onyinye N Anyama
Movant(s):
Wilmington Savings Fund Society, Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:16-01046 Cohen v. Cohen
Docket 160
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Saeed Cohen Represented By
Ron Bender
11:00 AM
Krikor J Meshefejian Beth Ann R Young
Plaintiff(s):
Fariba Cohen Represented By
Alan W Forsley Susan K Seflin Kevin J Leichter
11:00 AM
Adv#: 2:16-01046 Cohen v. Cohen
Docket 150
Grant, on the terms set for in the parties' stipulation (dkt. 160) resolving the issues addressed in this motion (see calendar no. 1, 12/4/18 at 11:00 a.m.). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
Defendant(s):
Saeed Cohen Represented By
Ron Bender
11:00 AM
Movant(s):
Krikor J Meshefejian Beth Ann R Young
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Beth Ann R Young
Plaintiff(s):
Fariba Cohen Represented By
Alan W Forsley Susan K Seflin Kevin J Leichter
11:00 AM
fr. 6/7/18, 08/07/18, 9/18/18, 9/26/18, 10/23/18, 11/6/18, 11/27/18
Docket 41
Debtor(s):
Johnnie L. Fields Represented By Leslie Richards
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
Docket 25
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Joint administration
This Court has issued an order for joint administration of In re Karla Ramirez (Case No. 2:18-bk-15055-NB) (daughter; lead case) and In re Sergio Alfredo Ramirez (Case No. 2:18-21263-NB) (father). See lead case dkt. 86 (the "JointAdmin Order") (entered 11/26/18). That order directs that a notice of joint administration must be filed and served "in each case being jointly administered," and an amended master mailing list must be filed in the lead case that "contains the name and mailing address of all creditors and interest holders from each case being jointly administered." JointAdmin Order, para. 2 (emphasis added). As of the preparation of this tentative ruling, this Court's records do not reflect that those things have been done.
Calendar management
A hearing has been set for 12/18/18 at 1:00 p.m. on the employment application (dkt. 37, 39). The tentative ruling is to continue the status conference in the daughter's case to that date (from its current date of 12/11/18 at 1:00 p.m.) and direct proposed counsel, Mr. Giron and Mr. Tang, to give notice.
Allocation of assets, liabilities, and responsibilities, and potential conflicts between estates. As between the father and daughter, what is the correct record title (and actual ownership interests, if different) of the Downey rental property? Which of them are obligated on the debts secured by that property? Which of them has any interests in the rental income?
Does the father need to file a motion for use of cash collateral; a utility motion; a motion to assume or reject any leases; a budget motion; or other motions in connection with the Downey property?
What actual or potential conflicts may exist between the two
1:00 PM
bankruptcy estates and their creditors?
This Court anticipates addressing these issues only on a preliminary basis at this time. At the continued status conference they will be addressed more compehensively.
Deadlines/dates. This case was filed on 9/26/18.
Bar date: 2/7/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 12/18/18 at 1:00 p.m., to be concurrent with the hearing on the employment application (dkt. 37, 39).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sergio Alfredo Ramirez Represented By Lionel E Giron
1:00 PM
Docket 30
Tentative Ruling for 12/4/18
Appearances required.
Current issues
Lift stay motion (dkt. 73)/progress toward proposed refinance. There is no tentative ruling, but the parties should be prepared to address (i) whether Debtor's counsel has received the documents necessary to refinance the property, and whether there is a letter of intent or other progress with the proposed refinancing (see dkt. 97), and (ii) whether the pending claim objection (see dkt. 90, 96) is a sufficient basis to continue this status conference. If not, should this Court grant relief from the automatic stay and/or dismiss this case?
Deadlines/dates. This case was filed on 5/29/18 and converted from chapter 13 on 8/8/18.
Bar date: 11/9/18 (dkt. 55), timely served (dkt. 59).
Plan/Disclosure Statement*: TBD.
Continued status conference (if this case is not dismissed): 1/8/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Tentative Ruling for 11/6/18:
Continue to 12/4/18 at 1:00 p.m., with a brief status report due by 11/20/18. Appearances are not required on 11/6/18.
This Court has reviewed the Debtor's monthly operating report (dkt. 86). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 10/9/18:
Appearances required.
Current issues
Budget motion (dkt. 49). Without prejudice to any later assertion by any party in interest that the debtor's proposed expenses are not in fact "ordinary course," the tentative ruling is to grant the budget motion based on the debtor's declaration (dkt. 76) in response to the questions raised in this Court's order (dkt. 69).
Employment application for Tenina Law, Inc. (dkt. 50, 52, 53). Proposed counsel for the debtor should be prepared to address whether the declarations (dkt. 77, 79) in response to this Court's order (dkt. 67) can be interpreted broadly enough to address all "connections" that are required to be disclosed under Rule 2014 (Fed. R. Bankr. P.).
For example, this Court's order (dkt. 67, p.3:6-7) asked "have there been" - i.e., in the present or past - any economic or business or personal transactions between the Funder/Donor and the debtor. In response, the debtor declares (dkt. 67, para. 7), "[m]y Donor does not have any business or economic transaction with me ...." (Emphasis added.)
Another concern in that both proposed counsel and Debtor appear to
1:00 PM
be under the mistaken impression that Debtor could, if necessary, waive conflicts. That is not possible, because Debtor is acting not just for herself but as a trustee for the benefit of all creditors.
Another concern is that there is no indication that Donor has been fully apprised of this Court's concerns.
The tentative ruling is that, before this Court issues any order approving the application, counsel must file Debtor's supplemental declaration (i) quoting Rule 2014 in full, (ii) confiming that there are no "connections" within the meaning of that Rule, except for Donor's friendship with Debtor, (iii) confirming that Debtor understands that (pursuant to this Court's conclusion of law) any conflicts that might turn out to exist cannot be waived, and (iv) confirming that Debtor has provided to Donor a copy of this Court's order (dkt. 67) and the responsive declarations (dkt. 77, 79, and the declaration described in this paragraph). Subject to the foregoing, and the terms of the stipulation with the United States Trustee (dkt. 58), the tentative ruling is to approve the application.
Proposed orders. Whatever this Court's rulings on the foregoing issues, Debtor is directed to lodge proposed orders via LOU within 7 days after the hearing date, and attach a copy of these tentative rulings, thereby incorporating them as this Court's final rulings, except as modified on the record. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 5/29/18 and converted from chapter 13 on 8/8/18.
Bar date: 11/9/18 (dkt. 55), timely served (dkt. 59).
Plan/Disclosure Statement*: file by 12/23/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/6/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 9/4/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 5/29/18 and converted from chapter 13 on 8/8/18.
Bar date: 11/9/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 12/23/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Grant application for hearing on shortened time (see evidence of service, dkt.
1:00 PM
31, 33). There is no tentative ruling on the motion to vacate dismissal of this chapter 13 case with a 180-day bar, so as to permit the debtor to pursue chapter 11 relief either in this case or by filing a new case. The parties should be prepared to address any opposition at the hearing. See Order Shortening Time (dkt. 28). Appearances required.
Key documents reviewed (in addition to motion papers): Application for order shortening time (dkt. 26) and evidence of service (dkt. 31, 33).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
Movant(s):
Nandini Mariwala Savin Represented By Alla Tenina
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
JAIN 2012 GIFT TRUST DBA MIRADA GROUP
vs DEBTOR
Docket 73
Please see the tentative ruling for the status conference (calendar no. 2, 12/4/18 at 1:00 p.m.).
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
Movant(s):
Jain 2012 Gift Trust DBA Mirada Represented By
Martin W. Phillips
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
fr. 10/2/18
Docket 36
Tentative Ruling for 12/4/18
Please see the tentative ruling for the case status conference (calendar no. 5, 12/4/18 at 2:00 p.m.).
Tentative Ruling for 10/2/18
Please see the tentative ruling for the case status conference (calendar no. 4, 10/2/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Represented By
Kevin P VanLandingham
Movant(s):
Bureau of Land Management Represented By
Kevin P VanLandingham
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Luis A Solorzano
2:00 PM
Giovanni Orantes
2:00 PM
Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
(2) Turnover Under 11 U.S.C. § 542
fr. 05/08/18, 06/26/18, 09/18/18, 10/2/18
Docket 1
Tentative Ruling for 12/4/18
Please see the tentative ruling for the case status conference (calendar no. 5, 12/4/18 at 2:00 p.m.).
Tentative Ruling for 10/2/18
Please see the tentative ruling for the case status conference (calendar no. 4, 10/2/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Represented By
Kevin P VanLandingham
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By
2:00 PM
Luis A Solorzano Giovanni Orantes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
3) Interfering with Economic Relationship; 4) Slander of Title;
5) Quiet Title; 6) Declaratory Relief
fr. 8/22/17, 11/14/17, 1/23/18, 02/13/18, 03/06/18, 4/17/18, 5/8/18, 6/26/18, 9/18/18, 10/2/18
Docket 1
Tentative Ruling for 12/4/18:
Please see the tentative ruling for the case status conference (calendar no. 5, 12/4/18 at 2:00 p.m.).
Tentative Ruling for 10/2/18:
Please see the tentative ruling for the case status conference (calendar no. 4, 10/2/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the case status conference (calendar no. 9, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Tentative Ruling for 4/17/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 7, 4/17/18 at 2:00 p.m.).
Tentative Ruling for 3/6/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 11, 3/6/18 at 2:00 p.m.).
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Tentative Ruling for 2/13/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 4, 2/13/18 at 2:00 p.m.).
Tentative Ruling for 1/23/18:
Please see the tentative ruling for the status conference in the main case (calendar no. 8, 1/23/18 at 2:00 p.m.).
Tentative Ruling for 11/14/17:
Appearances required. The tentative ruling is to deny the motions for default judgments, without prejudice, for the reasons set forth below, and to set a continued status conference for 1/30/18 at 2:00 p.m.
On the one hand, there appears to be successful prosecution of this adversary proceeding because, according to the plaintiff's status report (adv. dkt. 92), all of the defendants have either agreed to the requested declaratory relief or have defaulted. On the other hand, there are some fundamental issues that appear to prevent this court from granting default judgments at this time.
Self-calendaring error. The motions for default judgments were only served on 10/27/17. See, e.g., Motion for Default Judgment Derek Wilshee (dkt. 83, 74) (collectively, the "Wilshee Default Motion"). That is insufficient time prior to the hearing, under the applicable rules, nor was there any cover notice of the hearing date and deadline for any opposition or response.
Jurisdictional issues.
Personal jurisdiction. Does the complaint adequately establish personal jurisdiction over each defendant? At least one defendant is alleged to be a resident of Australia (dkt. 1, para. 14), although the plaintiff has voluntarily dismissed claims against that defendant (dkt. 107). Are each of the defaulting defendants subject to personal jurisdiction?
Subject matter jurisdiction, and abstention. The complaint and motions for default judgment make somewhat vague assertions of other action(s) that were or are pending in other courts apparently involving the same subject matter, and involving at least preliminary injunctive relief if not
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other relief. Can this Bankruptcy Court assume jurisdiction over matters that are pending in other courts? Must or should this Bankruptcy Court abstain?
Allegations of wrongdoing. Where is the analysis tying each of the defaulting defendants to one or more of the specific acts of wrongdoing bringing them within the claims in the complaint? For example, the only allegation in the complaint regarding Mr. Wilshee (dkt. 1, para. 14) appears to be that he was at one time an officer of the debtor. How is that an act of wrongdoing?
The Wilshee Default Motion seeks a default judgment against Mr.
Wilshee of $431,472,300.00 (dkt. 74, at PDF p.51 of 53). How is he responsible for such alleged damages? Does the complaint need to be amended to establish, as against one or more of the defaulting defendants, how they are alleged to be liable?
Calculation of damages. An exhibit to the plaintiff's motions for default judgments asserts that "Based on Department of Conservation Records [available on a website and/or verified by whom?], these leases [which leases? the ones that allegedly were supposed to be assigned but were not?] were producing 1730 barrels of Oil a day [when?]" and "[w]ith today's technology [how is today's technology better?], a conservative figure would be 3500 barrels a day [based on whose expert opinion?] that will be used as a figure for all the losses caused by Western States International [how about other defendants?]." Dkt. 83, Ex.A, at PDF p.17 of 53. The same exhibit shows a calculation of alleged damages based on "Approx Production" of "105,000" which is far more than 3500 barrels (perhaps using a 30-day presumptive month multiplied by 3500 barrels a day?), an "Average Oil Price [from what source?]," and a "Cost [to extract, market, refine, deliver, and sell the oil - or some other or different set of things? based on what expert's opinion?]." Based on the foregoing questions, and applying Rule 55(b)(2) (Fed. R. Civ. P.) (incorporated by Rule 7055, Fed. R. Bankr. P.), it appears that additional evidence and a "prove up" hearing will be needed to determine the amount of damages, if not other issues.
Alleged costs, attorney fees, and interest. The debtor/plaintiff asserts $1 million in costs (dkt. 74 at PDF p.51 of 53) - how is that possible? What are the components? Attorney fees are alleged to be $300,000 - this case has
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barely commenced, so how is that possible? Where are the daily time sheets and/or other support for this figure? Prejudgment interest is alleged to be at a 10% rate per year starting 1/1/11. What is the contractual or statutory basis for that interest rate and that commencement date? The purported damages were incurred month by month, so how can interest run from before those damages were incurred?
Declaratory relief. The plaintiff makes broad allegations about the rights under various contracts, or arising from breaches of those contracts or by operation of law. Where is the support for these allegations? The plaintiff cannot place the burden on this court to sort through numerous provisions of various contracts to piece together the plaintiff's theory. The plaintiff must provide specific, easy-to-follow analysis and evidence.
Conclusion. Because the motions for default judgments are both procedurally and substantively deficient in all of the ways set forth above, the tentative ruling is to deny them without prejudice.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Appearances required. This court notes that the parties were directed to file a joint status report two weeks in advance of this hearing (dkt. 2), but have not done so. In addition, this court notes that the tentative ruling in the main case status conference (calendar no. 3, 8/22/17 at 2:00 p.m.) is to dismiss the main case, which normally would terminate this adversary proceeding.
Nevertheless, to preserve all rights in the event that this court were to be persuaded not to dismiss the main case, this court has reviewed the other filed documents and records in this adversary proceeding and issues the following tentative ruling.
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Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 6/19/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 1/12/18 Expert(s) - deadline for reports: 1/26/18
Expert(s) - discovery cutoff (if different from above): 2/9/18 Dispositive motions to be heard no later than: 3/2/18
Joint Status Report: 11/28/17
Continued status conference: 12/12/17 at 11:00 a.m. Trial deadlines to be determined at a later time.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
Michael Smushkevich Pro Se
DOES 1 through 10, inclusive Pro Se
David Smushkevich Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) LTD Pro Se Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se
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Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Paul Guiller Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
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INGRID ALIET-GASS
vs DEBTOR
Docket 130
Tentative Ruling for 12/4/18:
Please see the tentative ruling for the case status conference (calendar no. 5, 12/4/18 at 2:00 p.m.).
Tentative Ruling for 10/2/18:
Please see the tentative ruling for the case status conference (calendar no. 4, 10/2/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the case status conference (calendar no. 9, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 5/8/18:
Please see the tentative ruling for the case status conference (calendar no. 10, 5/8/18 at 2:00 p.m.).
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
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Movant(s):
Ingrid Aliet-Gass Pro Se
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1/23/18, 02/13/18, 03/06/18, 4/17/18, 5/8/18,
6/26/18, 9/18/18, 10/2/18
Docket 1
Tentative Ruling for 12/4/18:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/2/18:
Appearances required. There is no written tentative ruling, but this Court may give oral tentative rulings at the start of the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Continue all matters in this case that are set for today to 10/2/18 at 2:00 p.m.,
sua sponte. Appearances are not required on 9/18/18.
Tentative Ruling for 6/26/18:
Continue (1) the Status Conference and (2) the motion of Ms. Aliet-Gass for relief from the automatic stay to 9/18/18 at 2:00 p.m. to be concurrent with related hearings. Appearances are not required on 6/26/18.
Tentative Ruling for 5/8/18:
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This court anticipates posting a tentative ruling at a later time. [NOTE: no tentative ruling was posted]
Tentative Ruling for 4/17/18:
Continue (1) calendar nos. 5, 6 and 7 on today's calendar, and (2) the motion for relief from the automatic stay filed by Ingrid Aliet-Gass for herself and Western States International, Inc. (dkt. 130, the "R/S Motion") all as set forth below. Appearances are not required on 4/17/18.
Specifically, the tenative ruling is as follows:
Continue (a) the status conference in this bankruptcy case, (b) the status conference in adversary proceeding no. 2:17-ap-01326-NB, and (c) the debtor's motion to amend the complaint in that adversary proceeding (adv. dkt. 125, and see adv. dkt. 130, 131, 139, 142) to be concurrent with (d) the motion by the Bureau of Land Management ("BLM") to dismiss the separate adversary proceeding against it (no. 2:18-ap-01057-NB, adv. dkt. 7), which is currently scheduled for 5/8/18 at 2:00 p.m.
Continue the R/S Motion, which is currently set for 5/1/18 at 10:00 a.m., to the same date and time.
After this hearing date this Court will prepare an order continuing all of the foregoing matters and will serve it on the BLM, Aliet-Gass, and Western States International, Inc. at the addresses known to this Court, and that order will also direct the debtor to serve those parties and any other known parties with an interest in the foregoing matters.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: 7/10/17 and 1/26/18 (sufficiently served, dkt. 56, 60, 103, 107, 110, 111, 121, 123).
Plan/Disclosure Statement*: TBD.
Continued status conference: see above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Default judgment motion - Wilshee (adv. dkt. 140). Deny for lack of service. See dkt. 140 at PDF p.4 (serving defendant at "ENTER ADDRESS HERE").
Default judgment motion - JNDDC, LLC (adv. dkt. 135). Deny for lack of service. See dkt. 135, last two pages (defendant not listed in service list).
Default judgment motion - Flavio Rodriguez (adv. dkt. 133). Deny for lack of service. See dkt. 133 at PDF p.8 (marked up by someone - movant? - to show deficiencies in completion of proof of service) and dkt. 133 last two pages (defendant not listed on service list).
Default judgment motion - Jag Pathirana (adv. dkt. 134). Grant. It appears that plaintiff has abandoned claims against defendant Jag Pathirana other than "clearing title" to the plaintiff/debtor's alleged property interests at issue in the complaint. That appears to moot the relevant concerns previously raised by this court (see adv. dkt. 116, exhibit).
Case status report (case dkt. 122) and adversary proceeding against Bureau of Land Management (Adv. No. 2:18-ap-01057-NB). The debtor should be prepared to provide an update as to the status of these matters.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: 7/10/17 and 1/26/18 (sufficiently served, dkt. 56, 60, 103, 107, 110, 111, 121, 123).
Plan/Disclosure Statement*: TBD.
Continued status conference: 4/10/18 at 2:00 p.m., brief status report due 4/3/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status Reports (main case dkt. 122; adv. no. 2:17-ap-01326-NB, dkt. 132). The debtor/plaintiff suggests that it will be filing a motion to approve a disclosure statement. Is that premature, given the following issues?
Motion to amend complaint (adv. dkt. 125). The parties should be prepared to address the issues raised in the motion and in the oppositions filed by the California Department of Conservation, Division of Oil and Gas, and Geothermal Resources ("DOGGR") (adv. dkt. 125, 130, 131).
In addition, the debtor/plaintiff should be prepared to address whether the proposed amended complaint cures the deficiencies in the original complaint, and whether any ruling on the motion to amend the complaint should be deferred until after default judgments are (or are not) obtained on the existing (original) complaint, for the reasons set forth in this Court's Memorialization Of Reasons For Denying Motions For Default Judgments (captioned for the adversary proceeding but erroneously filed in the main case as dkt. 118). See also Order denying prior motions for defaul judgments (adv. dkt. 117) and subsequent Motions for default judgments (adv. dkt. 133, 134, 135).
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60, 103, 111, 121, 123); supplemental date of 1/26/18 (order served
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late, but the tentative ruling is to excuse that lateness, dkt. 107, 110).
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/20/18 at 2:00 p.m., status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue the status conferences in both the main case and the adversary proceeding (adv. no. 2:17-ap-01326-NB) to 2/13/18 at 2:00 p.m. with a status report due 2/6/18 (at which time other documents are also due as set forth below) for the reasons set forth below. Appearances are not required on 1/23/18.
Current issues
Reasons for continuance: (i) because of the problems noted below;
because of the debtor's untimely last-minute filing of status reports (the debtor is cautioned that continued untimely filings may result in sanctions);
because of the inability of the Office of the United States Trustee to appear due to the shutdown of much of the federal government, (iv) to be concurrent with the (improperly self-calendared) motion to amend the complaint, and (v) in view of the debtor's various status reports (main case dkt. 117, adv. dkt. 122, 127, 129).
Bar date. The debtor's proofs of service of the bar date order are missing exhibits and incomprehensible (see dkt. 110, 111). The debtor is directed to file, no later than 2/6/18, either a corrected proof of service or an application (supported by a declaration) to set yet another supplemental bar date - whichever is appropriate.
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Status of existing complaint in adversary proceeding. On 11/20/17 this court issued an order (adv. dkt. 117) denying the plaintiff/debtor's motions for default judgments, without prejudice. The debtor now seeks to amend the complaint (adv. dkt. 125). All of these things moot the motions for default judgments so the hearings on those motions have been vacated.
In addition, the tentative ruling is to memorialize this court's reasons for denying the motions for default judgments by filing on the docket a copy of this court's adopted tentative ruling for the 11/14/17 hearings on those motions (reproduced within the tentative ruling for calendar no. 9. 1/23/18 at 2:00 p.m.).
Motion to amend complaint (adv. dkt. 125). This motion was self- calendared for 2:00 p.m. (a time that cannot be used for self-calendaring) on 2/13/18. Nevertheless, the tentative ruling is to permit that motion to proceed at that time.
Deadlines/dates. This case was filed on 11/23/16.
Bar date: initial date of 7/10/17 (order timely served, dkt. 56, 60); supplemental date of 1/26/18, to be served no later than 11/15/17 (per Order, dkt. 107) but proofs of service are incomprehensible (dkt. 110, 111) - see above under "current issues".
Plan/Disclosure Statement*: TBD.
Continued status conference: as set forth above.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges,"
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"Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the following issues.
Current issues. The debtor has filed a second (very belated) proof of service (dkt. 103) of this court's order (dkt. 56) setting a bar date. Under that order the bar date was set as 7/10/17 and service was required no later than 5/8/17. What does the debtor's belated service do except cause confusion? Does the debtor require a new bar date for previously unknown creditors?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60; but see above under "current issues").
Plan/Disclosure Statement*: TBD.
Continued status conference: 1/30/18 at 2:00 p.m., status report due 1/16/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
The tentative ruling is to dismiss this case with a 180 day bar for willful failure to appear in proper prosecution, as set forth below. See 11 U.S.C. 109(g)(1). Appearances are not required.
Reasons: This case was filed on 11/23/16. The debtor's assets consist of disputed rights in hydrocarbon leases. See Status Report, dkt. 81. Realizing any value from those rights apparently depends on retaining special counsel
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who will diligently prosecute the debtor's claims. Despite numerous opportunities, the debtor has failed to satisfy the prerequisites for retention of special counsel.
Inadequate declarations about "connections"
At the hearing on 7/11/17 this court extensively reviewed the evidence that would be required before this court could approve the application to employ the latest proposed special counsel, Mr. Montes. That included a requirement of detailed declarations from Mr. and Mrs. Hoats regarding any transfers of any property (including intangible property) involving the debtor and any of them, as well as any other "connections" (as that term is used in Rule 2014, Fed. R. Bankr. P.) to the debtor and any other party in interest.
This court recognizes that Mr. and Mrs. Hoats are not the professionals whose employment is being sought. Nevertheless, given their very close ties to the debtor, and their failure to disclose connections to the prior proposed special counsel that raised questions about conflicts of interest, this court orally ordered the debtor to provide their declarations at the hearing on 5/2/17. That order has been ignored.
Knudsen factors
This court also directed Mr. Montes to file a declaration addressing the factors that this court must consider in assessing his request to be paid more frequently than once every 120 days. See In re Knudsen, 84 B.R. 668,
672-73 (9th Cir. BAP 1988). Mr. Montes has filed such a declaration (dkt. 82) and has adequately summarized the factors (id., p.3:15-23) but he has not adequately addressed the third factor, which he summarizes as: "any funds paid but later disapproved by the court can be recovered from the professional" in one or more of the ways listed in Knudsen. (Emphasis added.) Those ways are:
[a. Holdback] retainer payments are for only a percentage of the amount billed so that the likelihood or necessity of repayment is minimal [Mr. Montes suggests a 10% holdback, which has not been shown to be adequate - the typical amount is 20%, and that typically applies only to well established firms whose ability to repay funds is reinforced by the firm's longevity and reputation or similar considerations];
[b. Bond] counsel can post a bond covering any possible reassessment [Mr. Montes has not addressed this factor];
[c. Financial ability to repay] counsel's financial position makes it
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certain that any reassessment can be repaid [Mr. Montes has not addressed this factor]; [and/or]
[d. Hold funds in trust account] funds paid prior to allowance are held in a trust account until a final or interim fee allowance is made [Mr. Montes has only offered to place the 10% proposed holdback in a trust account]. [Knudsen, 84 B.R. 668, at 672]
The debtor appears to cite the wrong statutory authority
The debtor's application to employ Mr. Montes (dkt. 65) requests that his employment be approved under subsection "(e)" of 11 U.S.C. 327. But that subsection only applies by its terms to an attorney who "has represented the debtor" (i.e., prepetition counsel whose employment is to continue postpetition). Id. (emphasis added).
That is not the end of the analysis, because it has been held that special counsel can be employed even when such counsel has not represented the debtor prepetition. See In re Fondiller, 15 B.R. 890, 892 (9th Cir. BAP 1981) (emphasis added), appeal dism., 707 F.2d 441 (9th Cir.
1983). Although Fondiller has been interpreted as authorizing employment under subsection (e) (see, e.g., Covenant Fin. Group of Am., Inc., 243 B.R. 450, 455 & n. 8 (Bankr. N.D. Ala. 1999)), the precise holding of Fondiller appears to be that special counsel can be employed under subsection "(a)" of Section 327 because any "omission" in subsection "(e)" does not limit the general authority in subsection "(a)." See Fondiller, 15 B.R. at 891-92 (interpreting § 327(a) by comparison with §§ 327(c) and (e)).
True, the precise statutory authority appears to make little if any practical difference, because Fondiller held that when counsel is only employed to perform limited services, then an interest "adverse to the estate" means "an adverse interest relating to the services which are to be performed by that attorney," which appears to mean that the inquiry for proposed special counsel under subsection "(a)" is the same as under subsection "(e)." Fondiller, 15 B.R. at 892 (emphasis added). Mr. Montes' declaration (included in dkt. 65) appears to meet this test because he states that he has no adverse interest.
Nevertheless, as stated above this court has required additional evidence from Mr. and Mrs. Hoats and that evidence has not been provided. In addition, because the debtor has sought authority under subsection "(e)" instead of "(a)" it appears not have met the technical requirements for employment of Mr. Montes.
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 7/11/17:
Appearances required.
Current issues
Employment of special counsel. Deny the application to employ the Law Offices of M. Brian McMahon (dkt. 46) because he no longer intends to pursue employment. See dkt. 73, para. 3. Deny the application to emply the Law Offices of Mike Montes, Jr. (dkt. 65) due to the failure to address the issues raised by this court in the tentative ruling for 5/2/17 (reproduced below) (without reaching the issues raised by the U.S. Trustee's objection, dkt. 72, and the debtor's reply, dkt. 74). The U.S. Trustee is directed to lodge proposed orders denying each application within seven days after this hearing date.
Lack of progress. Should this case be dismissed for lack of prosecution?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date: 7/10/17 (order timely served, dkt. 56, 60).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/22/17 at 2:00 p.m., status report due 8/15/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/13/17:
Continue to 7/11/17 at 1:00 p.m. to allow the debtor time to prosecute an employment application regarding Mr. Motes (see debtor's case status report, dkt. 62). Appearances are not required on 6/13/17.
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/2/17:
Appearances required. There is no tentative ruling, but the debtor's proposed attorney, Brian McMahon Esq., should be prepared to address the concerns set forth in the U.S. Trustee's objection (dkt. 49) and the other issues set forth below.
Current issues.
Proposed special counsel.
Background. On 4/5/17 the debtor filed an application for authority to employ the law offices of Mr. McMahon as special counsel under 11 U.S.C. 327(e) (dkt. 47). On 4/12/17 the United States Trustee ("UST") filed an objection to the employment application, which expressed concerns about the payment arrangement proposed in the application (dkt. 49).
The debtor filed a statement of disinterestedness for Mr. McMahon (dkt.53), and a reply (dkt.55), stating that a third party, Ms. Lilian Hoats, will be paying the attorney fees for Mr. McMahon's representation. Ms. Hoats is the CEO of Inviron Technologies, Inc. ("Managing Member"), which is the debtor's managing member (dkt. 55, Ex.1, p.1, recital "b"). Attached to the reply (dkt. 55, Ex.1) is a written document that purports to be a waiver of conflicts (if any exist) among the debtor, Ms. Hoats, and the Managing Member (the "Hoats/Managing Member Conflict Waiver").
The Attorney-Client Retainer Agreement attached to the employment application (dkt. 46, Ex.1) provides that Mr. McMahon is representing not only the debtor but also its affiliates Riverwood Energy, LLC ("Energy Affiliate") and Riverwood Resources Ltd. ("Resources Affiliate"). This court is not aware of the precise organizational and contractual relationships among the debtor, Energy Affiliate, and Resources Affiliate, nor of any written document purporting to be a waiver of conflicts (if any exist) among them.
Statutory provisions and rules
Although special counsel does not have to be "distinterested" (compare 11 U.S.C. 327(a)), special counsel still must not "represent or hold any interest adverse to the debtor or to the estate with respect to the matter
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on which such attorney is to be employed." 11 U.S.C. 327(e) (emphasis added). Under Rule 2014 (Fed. R. Bankr. P.) both Mr. McMahon and the debtor were supposed to disclose all connections between Mr. McMahon and "the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee."
The disclosures have not been adequate. This court does not know enough about the underlying litigation and the organizational and contractual relationships among the various entities to assess whether there may be conflicts of interest between the debtor, on the one hand, and Ms. Hoats, Managing Member, Energy Affiliate, and/or Resource Affiliate.
A DIP's conflicts generally cannot be waived
Any purported conflict waiver probably cannot waive actual conflicts.
See, e.g., In re Perry, 194 B.R. 875, 880 (E.D.Cal.1996) (waiver of conflict by non-debtor parties was insufficient and "[i]nformed consent could not be obtained" because "the real parties in interest in this case are the creditors, and that is not a waivable conflict"); In re B.E.S. Concrete Products, Inc., 93 B.R. 228, 235 (Bankr. E.D. Cal. 1988).
But while actual conflicts of interest create a violation of 11 U.S.C. 327 which would require disqualification of the proposed professional, the mere existence of a potential conflict of interest does not require disqualification, and it is up to the court's discretion whether the purported conflict is sufficiently threatening to the estate to warrant disqualification. In re Wheatfield Business Park, LLC, 286 B.R. 412, 421 (Bankr. C.D. Cal. 2002).
Are proposed counsel and the debtor aware of any actual conflicts?
How about potential conflicts?
The purported conflict waiver is incomplete
The Hoats/Managing Member Conflict Waiver is not actually signed by Ms. Hoats in her individual capacity (she has only signed it on behalf of the debtor's Managing Member). In addition, as noted above, this court is not aware of any purported conflict waiver among the debtor and Operating Affiliate or Resources Affiliate.
There might be conflicts among the debtor and Ms. Hoats A third party who funds a retainer for the debtor (the "Funder")
generally has some pre-existing relationship with the debtor, and/or some motivation to providing the funding. Those things increase the likelihood that the Funder could be the recipient of an avoidable preference, or might have
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alter ego liability, or otherwise might have interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a third party is not outright prohibited, it is fraught with ethical concerns. At the hearing, counsel for the debtor and proposed special counsel should be prepared to address the following.
Terms. What are the precise agreements, understandings or expectations regarding the funds -- e.g., are the funds a loan, a gift, an investment, or something else?
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and that the sole attorney-client relationship and duty of loyalty is with the debtor, not the Funder? Who provided such advice: independent counsel? counsel for the debtor? the debtor's proposed special counsel? Has the Funder given informed consent? Are those things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing? Ms. Hoats has signed the Hoats/Managing Member conflict waiver on behalf of the debtor: how can she, acting for the debtor, waive conflicts with herself?
Other considerations. Has proposed special counsel demonstrated or represented to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Lotus Prop's LP, 200 B.R. 388 (Bankr. C.D. Cal. 1996) (rejecting per se disqualification when fees are paid by third party); and compare In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990) (per se rule). See generally In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
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If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/4/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Status report. This court's previous tentative ruling (reproduced below) directed the debtor to file a status report by 3/14/17. Why has no such status report been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 5/23/17 at 2:00 p.m., status report due 5/9/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/7/17:
Continue to 4/4/17 at 2:00 p.m., status report due 3/14/17. No appearances are required on 2/7/17.
(1) Current issues
This case was filed on 11/23/16. The debtor's status report (dkt. 34) states that the debtor intends to retain special counsel, and the monthly
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operating reports (dkt. 37, 38) appear to show no activity other than opening DIP bank accounts and paying associated fees. Although progress in this case has been slow, it does not appear efficient to hold a status conference at this time. If substantially more progress is not shown by the next status conference, this court may dismiss this case for failure to appear in proper prosecution. See 11 U.S.C. 109(g)(1), 349.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Substitution of attorney. On 12/23/16, the debtor filed a substitution of attorney (dkt. 22) reflecting that current proposed counsel is Giovanni Orantes, Esq. Why has no employment application been filed?
Exit strategy. What is the debtor's exit strategy, and what progress has been made toward that goal?
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/13/16:
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Appearances required.
Current issues
Counsel for the debtor should be prepared to address why no status report has been filed (see dkt. 3); why the docket does not reflect that anything has been done in this case to date; and why this court should not convert or dismiss this case.
Deadlines/dates. This case was filed on 11/23/16. If this case is not converted or dismissed, the tentative ruling is to set the following:
Bar date*: to be set during the status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 2/7/17 at 2:00 p.m., status report due 1/24/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/29/16:
Appearances required by counsel for the debtor and by the debtor(s) themselves, pursuant to the order setting this status conference (dkt. 3).
Current issues.
First Day Motions. The debtor should be prepared to address the necessity of first day motions such as cash collateral, payroll, utilities, etc. To the extent that those motions are necessary, why have they not yet been filed?
Deadlines/dates. This case was filed on 11/23/16.
Bar date*: to be set at the continued status conference.
Plan/Disclosure Statement*: same.
Continued status conference: 12/13/16 at 2:00 p.m., initial status report due 11/29/16.
*Warning: special procedures apply (see order setting initial status
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conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
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Fargo Trucking Logistic Co LLC, Express FTC, Inc., Hancore Brokerage Services Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019
fr. 02/13/18, 03/06/18, 5/1/18, 5/22/18, 08/07/18, 9/21/18, 10/9/18
Docket 36
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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(2) Allocate Proceeds Resulting from Approval, if Any, of the Motion for Order Approving Settlement Between Debtor and CKT Logistics, Inc., Fargo International, LLC, Fargo Transport, LLC, Fargo Trucking Logistic Co., LLC, Express FTC, Inc., Hancore Brokerage Services, Inc., W3 International, Inc., June H. Ou, Philip H. Ting, Gershom Shing, Robert F. Wallace, Kurt Oliver, and Sigmund H. Ting Pursuant to Federal Rule of Bankruptcy Procedure 9019 Related to the Secured Creditors Liens
fr. 07/10/18, 08/07/18, 08/23/18, 9/21/18, 10/9/18
Docket 122
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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fr. 5/1/18, 5/22/18, 08/07/18, 9/21/18, 10/9/18
Docket 122
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Movant(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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fr. 5/1/18, 5/22/18, 08/07/18, 9/21/18, 10/9/18
Docket 149
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Docket 312
Please see tentative ruling for status conference (calendar no. 11 at 2:00 p.m. on 12/4/18).
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
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Docket 1
Tentative Ruling for 12/4/18:
Appearances required. This Court has reviewed the Combined Chapter 11 Plan and Disclosure Statement (Dkt. 312) (the "Plan" and "Disclosure Statement"), the Driver Creditors' Objection to Payment of Administrative Claim to Robert Wallace (Dkt. 335) (the "Objection"), the Clarification of Chapter 11 Plan (Dkt. 342), the Ballot Summary (Dkt 352), the Brief in Support of Confirmation (Dkt. 353), and Debtor's Opposition to the Objection (Dkt. 354).
Current issues
Objection (Robert Wallace's Administrative Claim) (dkt. 335, 354) The Driver Creditors object to the Plan's proposal to pay Mr. Wallace,
the sole officer of the Debtor, an administrative claim in the total of
$97,766.90. Dkt. 335. The Driver Creditors object that $10,000 per month compensation is not justified for a liquidating and non-operating businesss. The tentative ruling is to overrule that objection because (i) the Driver Creditors did not object (until now, approximately one year later) to Debtor's Notice of Insider Compensation (the "Notice") detailing Mr. Wallace's compensation on November 17, 2017 (dkt. 354) (see LBR 2014-1(a)(3)) and
Debtor's Opposition and Mr. Wallace's declaration (dkt. 354) adequately support the compensation.
Plan and Disclosure Statement
Approve the disclosures in the Disclosure Statement on a final basis (11 U.S.C. 1125), and confirm the Plan (11 U.S.C. 1129(a)&(b)), for the reasons set forth in Debtor's Brief in Support of Confirmation. The plan proponents are directed to lodge a proposed order within seven days after this hearing, which should include a paragraph setting a post-confirmation status conference (on the date set forth below) and include language
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substantially in the form required by LBR 3020-1(b).
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: see above.
Post-confirmation status conference: 2/26/19 at 1:00 p.m., with a status report (see LBR 3020-1(b)) due 2/12/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the Amended and Revised Settlement Agreement and Mutual and General Release Agreement (see dkt. 298).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/21/18:
Appearances required. This Court has reviewed the transcript that orally memorializes the principal parties' settlement. See Tr. 9/7/18 (dkt. 295), pp. 3:16-15:18 & 30:1-4 (the "Main Settlement"). The parties should be prepared to address the following issues.
Settlement documentation. What documents are being prepared to implement the Main Settlement (e.g., the form of notice to the Truck Drivers,
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including their election whether to return the trucks and their agreement to mutual releases)? What is the status of that preparation? Will the notice to the Truck Drivers need to be in any languages other than English and Spanish? What steps can be taken before the documentation is finalized, and conversely what steps should wait until the documents are finalized?
Secured/unsecured Truck Drivers. How do the parties propose to address what portion of the distributions from the bankruptcy estate should be allocated to the secured claims of certain Truck Drivers, and what remainder should be allocated to unsecured claims? Is that issue deferred until a proposed chapter 11 plan? If so, how will the possible effects of various secured claim amounts be adequately explained to the Truck Drivers who will be asked to consent to the Main Settlement? Conversely, if the parties have a proposed settlement as to the allowed dollar amount of these secured claims, what are the proposed terms of that additional settlement (the "Secured Driver Claims Settlement")?
Procedures. What procedures should apply to the Main Settlement and any Secured Driver Claims Settlement (or litigation)? For example, is another Rule 9019 motion advisable (or necessary)? Should this Court find and conclude, under Rule 2002(a)(3), Fed. R. Bankr. P., that some sort of supplemental notice and opportunity to object (and overbid?) is sufficient, given that notice has already been provided of the basic issues and standards governing settlement? See dkt. 36 (settlement motion) and dkt. 122 (priorities/secured claims motion).
Whatever further procedures are required, should different sets of documents be provided to (a) the Truck Drivers (holding both secured and unsecured claims) and (b) other creditors (holding both secured and unsecured claims)? Should all creditors, including the Truck Drivers, receive a complete set of settlement documentation, or is that an undue expense? Is it sufficient for such documents to be available upon request? Should any cover letter/notice be translated, but not the underlying documentation (to save expense)?
Calendaring. Is it appropriate (a) to continue the status conference and settlement motion (dkt. 19) for a relatively brief time, so that the parties can prepare the settlement documentation for review by this Court prior to mailing,
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and (b) take off calendar (without prejudice) all other matters that have been set for hearing today, including the overbid procedures motion (dkt. 149)?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue as stated below. No appearances required on 8/7/18.
Current issues. This Court has reviewed the parties' joint status report (dkt. 262) and other relevant pleadings in this case.
Bid Procedures Motion (dkt. 149). The tentative ruling is to defer ruling on this until after resolution of the discovery dispute and continue the hearing to a date and time to be set at the continued status conference set forth below.
Motion to Approve Compromise (dkt. 36). The tentative ruling is to defer ruling on this until after resolution of the discovery dispute and continue the hearing to a date and time to be set at the continued status conference set forth below.
Motion to Determine Extent & Priority of Truck Drivers' Liens (dkt. 122). The tentative ruling is to defer ruling on this until after resolution of the motion to disqualify and continue the hearing to a date and time to be set at the continued status conference set forth below.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 9/4/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 5/29/18:
Appearances required.
Current issues.
Debtor’s Motion to Extend Time to Assume or Reject Lease (dkt. 139). Debtor seeks an extension of time to assume or reject its lease of commercial real property located at 2727 E. Del Amo Blvd., Rancho Dominguez, CA 90221 (the "Property") with Joe Murez Exempt Trust ("JMET" or "Landlord") through June 4, 2018. But in connection with Landlord's currently motion (dkt. 184, see discussion below), the debtor concedes that there are incurable defaults that prevent it from assuming the lease and states that it intends to vacate and surrender the Property by May 31, 2018 (dkt. 197, PDF p. 7, lines 17-19 & Wallace Declaration, paragraph 14). Additionally, on May 7, 2018, debtor served its subtenants with 30-day notices to terminate rental agreement with an expiration date of June 6, 2018 (id., Ex. A).
In Landlord's motion (dkt. 184, see discussion below), it seeks possession of the Property effective as of June 5, 2018 and appears to have consented to an extension through that time (see dkt. 184, PDF p. 4, lines 26-27).
The tentative ruling is to grant the debtor's motion and extend the deadline to assume or reject the lease to May 31, 2018. The effects of that date on the subtenants and the Landlord are addressed below.
Landlord's Motion for Administrative Claim and Possession of Property (dkt. 184).
Base rent, late fees, interest, CAM, taxes, attorneys' fees and costs. Pursuant to 11 U.S.C. 365(d)(3), Landlord is entitled to an allowed administrative expense for the full amount of rent accrued during the period
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following the order for relief through the lease rejection, regardless of the actual value conferred by the lease upon the estate. See Pacific-Atlantic Trading Company, 27 F.3d 401 (9th Cir. 1994); In re Cukierman, 265 F.3d 846 (9th Cir. 2001). Section 365(d)(3) requires immediate payment of lease obligations so that the landlord is not left providing uncompensated services. In re Cukierman, 265 F.3d at 851-52.
In this case, Paragraph 4.1 of the Lease provides: "All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be Rent." Pursuant to paragraphs 1.5, 4.3, 10.2, 13.4, 13.5, and 31, Landlord is entitled to an allowed administrative expense for payment of base rent, late fees, interest, CAM, taxes, and attorneys' fees and costs. On the record before this Court, Landlord holds an estimated administrative expense in the amount of $79,965.01 ($48,626 (May rent) + $4,862.20 (late fee) + $11,661.31 (real property taxes) + $14,815.5 (attorneys fees) = $79,965.01). Landlord may supplement the record to establish a valid basis for any additional amounts it may be entitled to under the Lease (e.g., prorated June rent if the debtor has not turned over the premises as of 5/31/18).
No superpriority. Section 365(d)(3) does not authorize a superpriority over other administrative expenses. In re LPM Corp., 300 F.3d 1134 (9th Cir. 2002). It is possible that the estate will be administratively insolvent (although the estate's assets and its administrative claims are largely moving targets until the conclusion of any bankruptcy case) so if Landlord had slept on its rights and were seeking prior months' rent it would not be entitled to payment at this time; but that is not the situation.
Landlords are entitled to current payments. Other administrative claimants are not. There is no evidence that this Landlord has slept on its rights.
Reconciling the lack of priority with the entitlement to current payments, the tentative ruling is that Landlord is entitled to immediate payment of a pro rata share of funds that are available to pay estimated accrued administrative expenses to date. This is essentially the alternative relief requested by Landlord (see dkt. 200, p.4:4-8).
Because the interim fee applications (discussed below) seek approximately $305,000 in fees and expenses, and because Landlord's claim is approximately $79,965.01, it appears that the rough total of accrued administrative expenses is approximately $385,000, of which Landlord holds
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roughly $80,000, or approximately 20% ($80,000/$385,000 = 20.8%). Therefore, the tentative ruling is that Landlord is entitled to immediate payment of approximately 20% of the $47,000 in unrestricted funds currently in debtor's possession (dkt. 197, PDF p. 13, paragraph 13), or approximately
$9,400.
Landlord has not established that the funds are held in trust for it. This Court is not persuaded that the $47,000 in funds debtor has on hand is being held in trust for Landlord. Landlord has not carried its burden of establishing that, under California law, an express trust exists that excepts these funds from estate property. See Golden Mortg. Fund # 14 v. Kennedy, 171 B.R. 79, 84 (9th Cir. BAP 1994) ("A creditor has the burden to prove that the funds in the debtor's possession should be held in trust for that creditor's benefit").
Surrender and Writ of Possession. Landlord has discretion whether to extend the time for the debtor to assume or reject the Lease beyond the statutory maximum, or permit occupancy after rejection, absent nonbankruptcy law that would permit occupants to continue in possession. As set forth above, the tentative ruling is that the lease will be deemed rejected on 5/31/18.
Because neither the subtenants nor any other party in interest has articulated a sufficient basis for the subtenants to continue to occupy the Property following rejection of the Lease, the tentative ruling is to grant Landlord's request for a writ of possession directing any subtenants to surrender and vacate the property effective 6/6/18. Landlord is instructed to review LBR 7064-1 and include the necessary language set forth in 7064-1(e) into the proposed order.
Relief from stay. The tentative ruling is to grant Landlord relief from the automatic stay under 362(d)(1).
Waiver of 14-day stay. The tentative ruling is to waive the
14-day stay.
Interim Fee Apps of Levene Neale Bender Yoo & Brill (dkt. 177); CohenReznick LLP (dkt. 178); and Haberbush & Associates LLP (dkt. 179), and related documents (dkt. 200, 214). The tentative ruling is to approve the applications on an interim basis, subject to final review and approval at the conclusion of the case, but deny the requests for immediate payment of fees and expenses given the debtor’s limited funds on hand, except that
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Haberbush & Associates may draw down on its pre-petition retainer, subject to the possibility of disgorgement in future.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 8/7/18 at 2:00 p.m., to be heard concurrently with the other matters set for hearing in this case. Brief status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
This court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 5/22/18:
Appearances required.
Current issues.
April MOR (dkt.192). On PDF p. 3, the debtor identifies a payment made to "Transport" on 4/26/18 in the amount of $55,515.00 for "dispatch and brokerage svc." What is this payment for? Is it an "ordinary course" transaction?
Motion to Disqualify Truck Driver Counsel (dkt. 125). This Court issued an order (dkt. 169, amended dkt. 175) continuing this motion and set
(i) a 5/15/18 deadline for the Slattery Law Firm and Hirsch Law Firm to file supplemental papers addressing who properly represents the Truck Drivers; and (ii) a 5/21/18 at noon deadline to file any responses.
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This Court has reviewed the relevant papers. See dkt. 125, 126 & 127 (motion papers), dkt. 143 (Hirsch opposition), dkt. 145 (Slattery opposition), dkt. 156, 157 (debtor's reply), dkt. 161 (Slattery decl.), dkt. 167 (Slattery Rule 2019 statements), dkt. 189 (debtor's authorities re attorney-client privilege as applied to retainer agreements), dkt. 199 (Hirsch supp. opposition), dkt. 201 (Slattery decl.), dkt. 202 (Hirsch supp. reply), dkt. 203 (Hirsch evid. obj. to Slattery decl.), dkt. 204 (Rivera|Shakleford opp. re S.H. Chung, R.M. Rubio,
H.D. Alvarez & G. Perez Silva).
There is no tentative ruling, but the parties should be prepared to address the arguments set forth in the filed papers.
(c) Objection to Claim Nos. 11, 37, 38, 40, 44, 45, 50 (dkt. 108, 109,
111, 113, 115, 117, 119). The proofs of claim were filed by the Hirsch Law Firm and the claim objections/notices were served on the Hirsch Law Firm and Slattery Law Firm. However, based on the debtor's pending motion to disqualify both firms, the tentative ruling is to continue the hearings on these claim objections to 6/19/18 at 2:00 p.m., pending resolution of the motion to disqualify. At the continued hearings, the parties should be prepared to address whether it would be appropriate for this court to set continued oppositions deadlines.
Note: Counsel did not comply with Judge Bason's posted procedures (at www.cacb.uscourts.gov) requiring a cost/benefit analysis for any claim objection (although this court's own cost/benefit analysis appears to favor seeking to reclassify these claim). In future, counsel should comply with those posted procedures.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/29/18 at 2:00 p.m., to be heard concurrently with the other matters set for hearing in this case. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
2:00 PM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 5/1/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/6/18:
Appearances required.
Current issues.
Motion to Approve Compromise (dkt. 36). The parties should be prepared to address the status of any settlement negotiations with respect to the pending motion to approve compromise.
Status Report. At the last status conference on 2/13/18, this court directed the debtor to file a brief status report by 2/27/18. As of the preparation of this tentative ruling, the debtor has not complied. The debtor should be prepared to address why it failed to comply with this court's order.
Employment application: Creditors' Committee Counsel (dkt. 47, 65). The objection by certain truck drivers (dkt. 63) has been withdrawn (dkt. 89). The debtor's limited objection (dkt. 55) and the reply papers (dkt. 85, 86) raise issues that are best addressed in connection with any application for compensation, at which time this Court can evaluate whether the hourly billing rates are commensurate with the nature of the work performed, the time spent on each task, and the other factors under 11 U.S.C. 330. Therefore the tentative ruling is to overrule the objection and authorize the employment.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
2:00 PM
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Appearances required.
Current issues.
The parties should be prepared to address (a) whether the Court should order mandatory mediation of the proposed settlement, proposed assignment of the lease, and related issues; (b) whether concurrently this Court should set deadlines such as a discovery cutoff or, conversely, whether this Court should temporarily issue a stay of some litigation; and (c) whether the parties would prefer that this Court provide some tentative rulings or preliminary thoughts on various issues, or if instead it would foster possible settlement or serve other beneficial goals for this Court not to do those things at this stage of the case.
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 3/16/18 (order timely served, dkt. 43, 46).
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
n/a
Deadlines/dates. This case was filed on 11/6/17.
Bar date: 2/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: This court will discuss setting a deadline for the filing of a draft plan/disclosure statement at the status conference.
Continued status conference: 2/13/18 at 1:00 p.m., brief status report due 1/30/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
10:00 AM
Docket 0
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Maximum Legal (California), LLP Represented By
Martin J Brill Daniel H Reiss Lindsey L Smith
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer Steven Werth
10:00 AM
(2720 Homestead Rd, Suite 200, Park City UT 84098)
fr. 12/12/17, 02/13/18, 5/22/18, 08/07/18, 10/2/18, 10/26/18
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 144
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Tentative Ruling for 8/7/18 (same as for 5/22/18, 2/13/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the trustee should be prepared to address the status of the trustee's investigation into the alleged pre-petition transfer.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by
10:00 AM
consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Continue to 2/13/17 at 10:00 a.m. Appearances are not required on 12/12/17.
Reasons for continuance
Insufficient Service
The proof of service filed in support of the motion does not reflect service on the debtor to the attention of the appropriate person(s), in accordance with Rules 4001 and 7004(b)(3) (incorporated by Rule 9014(b), Fed. R. Bankr. P.), and Local Bankruptcy Rule 4001-1(c)(1)(C)(i). Under Judge Bason's posted procedures (at www.cacb.uscourts.gov), he generally does not sua sponte require that specific individuals be named - service can be "Attn: Officer or Managing/General Agent" or a similar phrase - but in the circumstances of this case, in which there are disputes regarding who is or is not authorized to represent the debtor, Judge Bason will direct that service be (i) on the debtor at its address of record "Attn: Philip Layfield, Officer of Record" and also, in a separate envelope, (ii) on the debtor at its address of record "Attn: Any Officer Other Than Philip Layfield."
Chapter 11 Trustee's Request for Extension
This court has reviewed the chapter 11 trustee's reponse (dkt. 152) to the motion, and movant's reply (dkt. 159). Given that this case is an involuntary case and the trustee has not had the benefit of any bankruptcy schedules, any statement of financial affairs, or access to the debtor's principals, this court is not persuaded by movant's argument that the trustee has already had sufficient time to investigate the alleged pre-petition transfer. In addition, the trustee has provided adequate evidence that the equity cushion and the relatively short delay provide adequate protection.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by
10:00 AM
consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
(2720 Homestead Rd, Suites 210 & 220, Park City UT 84098)
fr. 12/12/17, 02/13/18, 5/22/18, 08/07/18, 10/2/18, 10/26/18
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 143
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Tentative Ruling for 8/7/18:
Please see the tentative ruling for calendar no. 37, on the 10:00 a.m. calendar, 8/7/18.
Tentative Ruling for 5/22/18:
Please see the tentative ruling for calendar no. 30, on the 10:00 a.m. calendar, 5/22/18.
Tentative Ruling for 2/13/18:
Please see the tentative ruling for calendar no. 26, on the 10:00 a.m. calendar, 2/13/18.
10:00 AM
Tentative Ruling for 12/12/17:
Continue to 2/13/17 at 10:00 a.m. Appearances are not required on 12/12/17.
(Same reasons as for calendar no. 10, on the 10:00 a.m. calendar, 12/12/17.)
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Wells Fargo Bank, National Represented By
Jennifer Witherell Crastz
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
Docket 349
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
Docket 323
Tentative Ruling for 12/6/18:
Appearances required
General matters
Combined status conferences in the interrelated bankruptcy cases This hearing includes Status Conferences in each of the three related
bankruptcy cases before this Court: (a) In re Layfield & Barrett, APC, Case No. 2:17-bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay- Invol."), (c) In re Maximum Legal (Cal.), LLP, Case No. 2:17-bk-18433-NB ("Max-CA").
Review of documents
This Court has reviewed all filed documents through dkt. 147 in Lay-Invol, dkt. 376 in L&B, and dkt. 146 in Max-CA. This Court has also reviewed the records of this Court from prior hearings.
Pre-Filing Order
In the tentative ruling for 10/24/18 (reproduced below), this Court laid out in detail the various defects in Mr. Layfield's papers and this Court's concern that a pre-filing order is necessary to protect the parties and this Court from Mr.
Layfield's numerous frivolous and defective filings.
Despite numerous warnings, the tentative finding of fact and conclusion of law is that Mr. Layfield has continued his pattern of filing frivolous papers and making frivolous arguments. At the 10/24/18 hearing, the parties, including Mr. Layfield agreed to a deposition on 11/27/18. Wellgen also stated that they would likely file a Motion for Summary Judgment, which was in fact filed on 11/6/18. (Lay-Invol, Dkt. 100). Yet two weeks later, at 10:51 a.m. on 11/21/18, the day before Thanksgiving and the second business day before his scheduled deposition, Mr. Layfield emailed this Court requesting a telephonic hearing to determine whether he should be required to participate in the deposition. (Lay-
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Invol, Dkt. 117). Based on the relevant papers, including Mr. Layfield's emails (dkt. 125) and Wellgen's Response (Dkt. 120), and the arguments presented at the hearing on 11/26/18, this Court rejected Mr. Layfield's arguments against proceeding with his deposition. In this Court's view those arguments were frivolous.
The tentative finding, based on all of the foregoing, is that Mr. Layfield's papers have been filed for improper purposes, including harassing and driving up fees and costs for the trustees and creditors in each of these three cases, and delaying these proceedings. He also may be attempting to create a false image that he is diligently attempting to pursue his (former) clients' interests, although this tentative ruling makes no finding on that issue (because such a finding is unnecessary, and probably would require an evidentiary hearing, which would further delay these proceedings).
The tentative ruling is to issue an order to show cause ("OSC") why this Court should not impose the following pre-filing restrictions. Mr. Layfield will not be eligible to self-calendar any matters (notwithstanding this Court's self-calendar procedures); and his filings may not exceed 20 pages of text and 50 pages of exhibits without an application to this Court. The tentative ruling is to set the OSC for hearing at the same date and time as the continued status conferences (see below).
In addition, at the hearing on the OSC (or with prior notice at any other time), this Court may consider other remedies, either on its own motion or on a motion of a party in interest, under Rule 9011, Section 105, this Court's inherent powers, or any other applicable statute, rule, or doctrine. See generally 11
U.S.C. 105(a); Rule 9011 (Fed. R. Bankr. P.); In re Dyer, 322 F.3d 1178, 1196 (9th Cir. 2003); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007); De Long v. Hennessey, et al., 912 F.2d 1144 (9th Cir. 1990); In re Stanwyck, 450 B.R. 181, 200-08 (Bankr. C.D. Cal. 2011).
Matters on Calendar Today
Layfield's Motion to Transfer Venue (Lay-Invol. dkt. 93)
Deny without leave to amend. First, due to lack of proper service because the Motion was filed without a proof of service. Second, for the reasons stated in Wellgen's oppositon (dkt. 143). The Motion to Transfer Venue is not timely as required by Fed. R. Bankr. P. 1014 because Mr. Layfield was served with the involuntary petiton on 8/24/18 (dkt 34) and he did not move to transfer venue until
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10/19/18 (dkt 93), despite multiple prior filings. Moreover, venue is proper uner 28 U.S.C. 1408(2) due to the pending L&B case, which is an affiliate of Mr.
Layfield, and the considerations in favor of any transfer are far outweighed by the considerations in favor of retaining venue in this Court.
Wellgen's Motion for Summary Judgment (Lay-Invol, dkt. 100)
Layfield's Evidentiary Objections (Lay-Invol, dkt. 133)
Overrule Mr. Layfield's evidentiary objections based on the arguments presented in Wellgen's reply (dkt 138) and Fed. R. Civ. P. 56(c)(2). An objection may be lodged if the cited material "cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). Each piece of evidence to which Mr. Layfield objects can be presented in an admissible form because they are all final adjudications, public records, and other documents that cannot be reasonably questioned. See, e.g., Fed. R. Evid. 201(b)(2), 803(8)(A) (iii), 807.
Request for Judicial Notice (Lay-Invol, dkt. 83) Grant based on the above.
Motion for Summary Judgment (Lay-Invol, dkt. 100)
Grant based on the evidence and arguments Wellgen presented in the Motion for Summary Judgment ("MSJ") (dkt. 100) and its Reply (dkt. 138).
Joinder of Petitioning Creditors (Lay-Invol, dkt. 121, 122, 123, 124, 134, 135
In the alternative, the tentative ruling is that it would be proper to grant summary judgment and issue the order for relief in Mr. Layfield's involuntary bankruptcy case, even if he were able to present a bona fide dispute as to the liability or amount of involuntary petitioning creditor Wellgen's claim (which he has not done), because of the joinder of at least one other petitioning creditor. As a preliminary matter, Mr. Layfield's basis to disputing Wellgen's claim is highly speculative and remote.
He alleges that he was not present where the process server swears that he was found and served; assuming that the District Court would find that he was not actually present (contrary to what the process server declared), Mr. Layfield presumes that the process server was not simply mistaken but was engaging in "sewer service"; then he imputes the process server's alleged misconduct to Wellgen's attorneys or speculates that they might have been involved because they sent process servers to various locations where he claims he no longer resided or had business dealings; then he supposes that
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any such alleged misconduct by Wellgen's attorneys would be imputed to Wellgen; and then he supposes that not only would Wellgen's default judgment be vacated but its entire claim would be disallowed as a sanction against Wellgen. These suppositions do not create a bona fide dispute as to liability or amount; but for purposes of argument, the next portion of this tentative ruling will assume (contrary to the evidence) that Mr. Layfield could establish a bona fide dispute as to Wellgen's claim.
Even in that scenario, he would have to deal with the fact that four additional creditors, Mr. Mitchell Middleton, Mr. Art Hosmer, Mr. Bert Rosenquist, and Mr. Rodney Pimentel, have joined the Involuntary Petition (dkt. 121, 122, 123, 124, 134, 135). Mr. Layfield refused to testify as to those claims based on his Fifth Amendment privilege against self-incrimination at his deposition (dkt 142), so the tentative ruling is that he cannot establish that such claims are subject to a bona fide dispute as to liability or amount.
For example, as to Mr. Pimentel, the State Bar Order (dkt. 83 - Ex. A) ordered Mr. Layfield to pay Mr. Pimentel $742,422.15 in restitution plus 10 percent interest per year from June 20, 2017. Further, Mr. Layfield testified that he had not made restitution to Mr. Pimentel. (Dkt. 142 at p. 133, Lines 4-15). Accordingly, Mr. Pimentel's claim is not subject to a bona fide dispute and would satisfy any deficiency under 11 U.S.C. 303(b) if, for the sake of argument, this Court were to be persuaded that Wellgen's claim is subject to bona fide dispute because of Mr. Layfield's theory about how it allegedly could be disallowed by the District Court.
Layfield's Motion to Dismiss Involuntary Case (Lay-Invol, dkt. 48) Deny, without leave to amend, based on this Court's ruling on Wellgen's
Motion for Summary Judgment. The tentative ruling is that there is no genuine issue of material fact that the petitioning creditors' claims are not subject to bona fide dispute and aggregate at least $15,755 (under 11 U.S.C. 303(b)(2)) and that Mr. Layfield is not paying his debts as they become due (under 11. U.S.C. 303(h) (1)).
Layfield's Motion to Convert Case (Lay-Invol, dkt. 95)
Deny without leave to amend. First, the motion must be stricken based on Mr. Layfield's failure to pay the filing fee.
Second, although this Court tentatively ruled at the hearing on 10/24/18 that the right to convert from chapter 7 to chapter 11 might be absolute - based on differences between chapter 13 (in which a debtor remains in control to some
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extent) and chapter 11 (in which that is not necessarily so) - on further reflection this Court is persuaded that the possibility of remedial measures in chapter 11 (appointment of a trustee) is not enough to overcome the potential harms from a debtor who seeks to convert in bad faith, and therefore the Supreme Court's reasoning applies equally in both situaitons. See Marrama v. Citizens Bank of Mass., 549 U.S. 365 (2007); In re Levesque, 473 B.R. 331 (9th Cir. BAP 2012)
(applying Marrama to attempted conversion from chapter 7 to chapter 11).
Based on Mr. Layfield's failure to pay the filing fee, the arguments presented by Wellgen (dkt 145), and Mr. Layfield's answers in the deposition (dkt. 142), the tentative ruling is that Mr. Layfield filed the Motion to Convert in bad faith. Therefore, that motion should be denied.
Third, even assuming arguendo that Mr. Layfield had an absolute right to convert his involuntary case to chapter 11 under 11 U.S.C. 706(a), based on Mr. Layfield's own admissions, the State Bar Order, and the arguments of Wellgen (dkt 145), the tentative ruling is that this Court would be forced either (i) to simultaneously appoint a chapter 11 trustee or (ii) to convert the case immediately back to chapter 7, because Mr. Layfield is not qualified to be a debtor-in-possession. Based on the record before this Court, there would be no practical difference in the administration of the case, and the only effect would be added delay, expense, and harassment of the trustees and creditors in these related cases.
For the foregoing reasons, the tentative ruling is that the motion to convert must be denied, and that such denial must be without leave to amend.
Motion to Set Aside Default (Pachulski v. Layfield V, LLC et al.) (L&B, Adv. No. 18-ap-01050-NB, dkt. 27, 28)
Deny based on lack of standing because the Motion to Convert is denied.
Further, even if the Motion to Convert were granted, the Court would simultaneously either appoint a chapter 11 trustee or reconvert to chapter 7, and either way Mr. Layfield would not have standing to set aside the default.
Motion to terminate appointment of L&B trustee (L&B dkt. 349, 350).
Deny for the reasons set forth in this Court's order setting the 10/24/18 hearing (dkt. 351).
Motion under 11 U.S.C. 362(k) - Michel LeBlanc (Lay-Invol. dkt. 41).
Deny, due to lack of proper service (see Order, dkt. 50, and proof of service, dkt. 79) (with impermissible "/s/" signature), and for the reasons stated in the Wellgen's opposition (dkt. 68). In addition, although Mr. Layfield asserts
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that the subject property is exempt, it appears from the docket that he has not filed any bankruptcy Schedule C claiming any property as exempt; and, were he to do so, any party in interest may have objections, so this Court cannot presume that he could claim such exemptions.
Motion under 11 U.S.C. 362(k) - John Jansheki (dkt. 42).
Deny. First, due to lack of proper service. See Order, dkt. 51 (pointing out lack of signature); proof of service (dkt. 77) (with impermissible "/s/" signature); Jansheki Opp. (dkt. 72) (pointing out that service on non-bankruptcy attorneys is inadequate); In re Villar, 317 B.R. 88 (9th Cir. BAP 2004) (same).
Second, for the reasons stated in the Wellgen's opposition (dkt. 69) and by Mr. Jansheki (dkt. 72). Although Mr. Layfield's reply (dkt. 85) asserts that the subject property is exempt, it appears from the docket that he has not filed any bankruptcy Schedule C claiming any property as exempt; and, were he to do so, any party in interest may have objections, so this Court cannot presume that he could claim such exemptions.
"Special appearance" for the limited purpose of objecting to the employment of Jeffrey Golden's Law Firm and the appointment of an interim trustee (dkt. 37).
Overrule Mr. Layfield's objection, in his "special appearance" (dkt. 37), to the Chapter 7 Trustee's application (dkt. 30) to employ Mr. Golden's law firm, and overrule any objection or request for reconsideration of the appointment of the Trustee, because Mr. Layfield's papers are procedurally deficient (as explained in section "(3)" of the tentative ruling, dkt. 64, Exhibit), and also for the reasons stated in Wellgen's response (dkt. 46).
Note: This Court is not persuaded that any waiver by the Trustee of conflicts would be effective to override any non-compliance with 11 U.S.C. 327. But there is no such non-compliance on the present record. To the contrary, the statute specifically provides that an attorney for a creditor may be employed by the Trustee for limited purposes. See 11 U.S.C. 327(a)&(c); In re Fondiller, 15
B.R. 890 (9th Cir. BAP 1981). But in the event that any future conflict or potential conflict were to develop, that must be disclosed and the Trustee would need to request re-authorization or termination of the employment.
Motions for Relief from Stay (L&B dkts. 143, 144)
The parties should be prepared to address the status of the sale of the condos, and any other issues appropriate to address at this status conference.
Motion for protective order (Lay-Invol, dkt. 54, 55).
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Deny, without leave to amend, for the reasons set forth in this Court's
order setting the 10/24 hearing (dkt.58) and Wellgen's opposition (dkt. 81)
No leave to amend
The tentative ruling is that Mr. Layfield has not estabilished that he could amend any of his motions to cure the deficiencies noted above, so all of the foregoing denials of his motions should be without leave to amend. If he believes he can propose amendments that would cure the deficiencies, he is directed to address at the hearing how he proposes to do so.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: The tentative ruling is to continue the status conferences in L&B, Max-CA, and Lay-Invol to 12/18/18 at 2:00 p.m., with a brief status report by the trustees due 12/11/18.
Max-CA Scheduled Matters: The tentative ruling is to reschedule the pending Motion for Order Approving Stipulation and Closing Case (Max-CA dkt. 137) and the Final Fee Application (Max-CA, dkt 131) from 12/18/18 at 11:00 a.m. to 12/18/18 at 2:00 p.m. to be heard concurrently with the continued status conferences.
*Warning: special procedures apply (see order setting initial status conference).
Proposed orders: This Court will issue a "Memorialization of Tentative Rulings" with a copy of these tentative rulings attached, so that they are on the docket. Within 7 days thereafter, the prevailing parties are directed to lodge proposed orders via LOU, adopting this Court's oral rulings at the hearing, based on the tentative rulings, except as modified by this Court's findings of fact and conclusions of law made on the record at the hearing (as permitted by Rule 52(a)
(1) (incorporated by Rules 7052 and 9014(c), Fed. R. Bankr. P.). See LBR 9021-1(b)(1)(B). For purposes of this paragraph, if this Court adopts the tentative ruling in the LeBlanc matter, Wellgen is considered the prevailing party (in the absence of any response from Mr. LeBlanc).
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Tentative Ruling 10/24/18:
Appearances required.
General matters
Combined status conferences in the interrelated bankruptcy cases This Status Conference is being held in each of the three related
bankruptcy cases before this Court: (a) In re Layfield & Barrett, APC, Case No. 2:17-bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay- Invol."), (c) In re Maximum Legal (Cal.), LLP, Case No. 2:17-bk-18433-NB ("Max-CA").
Service of status conference order in L&B Case
The parties are reminded that this Court's order issued on 8/14/17 (L&B dkt. 28) provides that this Court may take various actions at any status conference in the L&B chapter 11 case without further notice. Although that order directed Debtor to serve a copy of that order on all parties in interest, it appears that Debtor never did so. The tentative ruling is to direct the Trustee in the Layfield & Barrett case to do so.
PDF procedures for Mr. Layfield
The parties should be prepared to address whether there is any reason why this Court should not adopt the procedures set forth in the tentative ruling requiring Mr. Layfield to file and serve documents in PDF format. See, e.g., In re Layfield (Case No. 2:18-bk-15829-NB), dkt. 88.
Other procedures for Mr. Layfield
This Court has reviewed every page of every paper filed by Mr. Layfield to date, including, for example, one motion that includes what he has estimated as either 3,500 pages or "over 4,000 pages" of exhibits. See Max-CA dkt. 113, p.10:1 (emphasis added), & dkt. 123, p.2:11. Most if not all of the documents accompanying Mr. Layfield's motions appear to be duplicative and irrelevant.
More generally, Mr. Layfield has shown a pattern of ignoring the applicable rules for service, notice, and other procedures. His papers generally consist of stream-of-consciousness allegations, with few if any citations to any statute, rule, court decision, or evidence, except blanket references to massive quantities of documents in bulk.
This Court has pointed out these problems repeatedly, but Mr. Layfield has not taken any meaningful measures to correct the problems (e.g., he has filed supplemental proofs of service in some matters, but those are also
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deficient). Mr. Layfield's massive sets of documents, lack of adherence to procedures, and lack of citations to law or evidence all place an unfair burden on parties in interest, as well as this Court. See, e.g., L&B dkt. 351 (order re motion to terminate appointment of trustee); L&B dkt. 355 (order denying "protocol" motion); L&B Adv. P. 2:18-ap-01050-NB (the "Utah Condo A/P") dkt. 29 (order re motion to set aside default); Lay-Invol. dkt. 50 (order re 362(k) motion v.
LeBlanc); Lay-Invol. dkt. 51 (order re 362(k) motion v. Jansheski); Lay-Invol. dkt. 56 (order re motion to dismiss involuntary case); Lay-Invol. dkt. 58 (order re motion for protective order); Lay-Invol. dkt. 64 (order re "special appearance"); Max-CA dkt. 116, p.1:19-4:5 (order re motion to dismiss case).
In addition, Mr. Layfield's motions appear to lack merit. Opposing parties and this Court have explained why, as set forth in the tentative rulings for all of the matters that are on for hearing today (10/24/18).
All of the foregoing defects suggests that Mr. Layfield's papers have been filed for improper purposes, such as to harass the parties, delay these proceedings, or create a false image that he is diligently attempting to pursue his (former) clients' interests. See, e.g., Max-CA dkt. 116 (order on motion to dismiss case). The tentative ruling is that this Court will issue an order to show cause why Mr. Layfield should not be subject to a "pre-filing order." In addition, this Court may consider other remedies, either on its own motion or on a motion of a party in interest, under Rule 9011, Section 105, this Court's inherent powers, or any other applicable statute, rule, or doctrine. See generally 11 U.S.C. 105(a); Rule 9011 (Fed. R. Bankr. P.); In re Dyer, 322 F.3d 1178, 1196 (9th Cir. 2003);
Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007); De Long v. Hennessey, et al., 912 F.2d 1144 (9th Cir. 1990); In re Stanwyck, 450 B.R. 181, 200-08 (Bankr. C.D. Cal. 2011).
Matters on Calendar Today (10/24/18)
Mr. Layfield's motion to dismiss Max-CA case (Max-CA dkt. 113, 114). Deny, without leave to amend, for the reasons stated in the tentative ruling for calendar no. 1 (10/24/18 at 10:00 a.m.).
Motion to terminate appointment of L&B trustee (L&B dkt. 349, 350). Deny for the reasons set forth in this Court's order setting this hearing (dkt. 351). The parties should be prepared to address whether leave to amend should be granted.
Motion to set aside default (Pachulski v. Layfield V, LLC et al.) (L&B,
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Adv. No. 18-ap-01050-NB, dkt. 27, 28). Deny, without leave to amend, for the reasons set forth in this Court's order setting this hearing (adv. dkt. 29) and the plaintiff/trustee's opposition papers (adv. dkt. 33, 34).
Motions for relief from stay (L&B dkt. 143, 144) (Utah Condos); and Status Conference re related fraudulent transfer action (Utah Condo A/P) (L&B, Adv. No. 18-ap-01050-NB). The parties should be prepared to address the status of the sale of the condos, and any other issues appropriate to address at this status conference.
Motion for protective order etc. (Lay-Invol. dkt. 54, 55). Deny, without leave to amend, for the reasons set forth in this Court's order setting this hearing (adv. dkt. 58) and the opposition of Wellgen Standard, LLC ("Wellgen") (adv. dkt. 81).
Motion to dismiss involuntary case (Lay-Invol. dkt. 48). Deny, without leave to amend, for the reasons set forth in this Court's order setting this hearing (adv. dkt. 56), Wellgen's opposition (adv. dkt. 73, pp.4:25-12:15), the joinder (dkt. 82, 83) of Richard M. Pachulski, Chapter 11 Trustee of Layfield & Barrett, APC (Case No. 2:17-bk-19548-NB), and Wellgen's Sur-Reply (dkt. 89, Ex.1). Although Mr. Layfield's reply (dkt. 84) asserts that he has grounds to dispute each claim, those grounds are insufficient to rebut the prima facie showing by the petitioners that they hold three claims in an aggregate amount of at least
$15,775, and that this is not subject to "bona fide" dispute. 11 U.S.C. 104, 303(b)(2) (emphasis added).
Motion under 11 U.S.C. 362(k) - Michel LeBlanc (Lay-Invol. dkt. 41). Deny, due to lack of proper service (see Order, dkt. 50, and proof of service, dkt. 79) (with impermissible "/s/" signature), and for the reasons stated in the Wellgen's opposition (dkt. 68). In addition, although Mr. Layfield asserts that the subject property is exempt, it appears from the docket that he has not filed any bankruptcy Schedule C claiming any property as exempt; and, were he to do so, any party in interest may have objections.
Motion under 11 U.S.C. 362(k) - John Jansheki (dkt. 42). Deny. First, due to lack of proper service. See Order, dkt. 51 (pointing out lack of signature); proof of service (dkt. 77) (with impermissible "/s/" signature); Jansheki Opp. (dkt. 72) (point out service on non-bankruptcy attorneys is inadequate); In re Villar, 317
B.R. 88 (9th Cir. BAP 2004) (same). Second, for the reasons stated in the Wellgen's opposition (dkt. 69) and Mr. Jansheki (dkt. 72). Although Mr. Layfield's reply (dkt. 85) asserts that the subject property is exempt, it appears
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from the docket that he has not filed any bankruptcy Schedule C claiming any property as exempt; and, were he to do so, any party in interest may have objections.
(i) "Special appearance" for the limited purpose of objecting to the employment of Jeffrey Golden's Law Firm and the appointment of an interim trustee (dkt. 37). Overrule Mr. Layfield's objection, in his "special appearance" (dkt. 37), to the Chapter 7 Trustee's application (dkt. 30) to employ Mr. Golden's law firm, and overrule any objection or request for reconsideration of the appointment of the Trustee, because Mr. Layfield's papers are procedurally deficient (as explained in section "(3)" of the tentative ruling attached to this Court' order setting this hearing, dkt. 64, Exhibit), and also for the reasons stated in Wellgen's response (dkt. 46).
Note: This Court is not persuaded that any waiver by the Trustee of conflicts would be effective to override any non-compliance with 11 U.S.C. 327. But there is no such non-compliance on the present record. To the contrary, the statute specifically provides that an attorney for a creditor may be employed by the Trustee for limited purposes. See 11 U.S.C. 327(a)&(c); In re Fondiller, 15
B.R. 890 (9th Cir. BAP 1981). But in the event that any future conflict or potential conflict were to develop, that must be disclosed and the Trustee would need to request re-authorization or termination of the employment.
Proposed orders: This Court will issue a "Memorialization of Tentative Rulings" with a copy of these tentative rulings attached, so that they are on the docket. Within 7 days thereafter, the prevailing parties are directed to lodge proposed orders via LOU, adopting this Court's oral rulings at the hearing, based on the tentative rulings, except as modified by this Court's findings of fact and conclusions of law made on the record at the hearing (as permitted by Rule 52(a)
(1) (incorporated by Rules 7052 and 9014(c), Fed. R. Bankr. P.). See LBR 9021-1(b)(1)(B). For purposes of this paragraph, Wellgen is considered the prevailing party on the LeBlanc matter (in the absence of any response from Mr. LeBlanc).
Deadlines/dates
Plan/Disclosure Statement*: TBD
Continued status conference: Vacate the L&B status conference presently set for 11/6/18 at 1:00 p.m. and instead hold combined status conferences in all three cases and the Utah Condo A/P on
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12/4/18 at 2:00 p.m., no written status reports required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Appearances required. To the extent that this Court has tentative rulings, they are set forth below. The parties should be prepared to address the following issues:
Status conferences in the interrelated bankruptcy cases. Various bankruptcy cases before this Court are interrelated: (a) In re Layfield & Barrett, APC, Case No. 2:17-bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay-Invol."), (c) In re Maximum Legal (Cal.), LLP, Case No. 2:17-bk-18433-NB ("Max-CA"). As a matter of calendar management, this Court will hold general status conferences in all of those cases concurrent with the status conferences on specific matters that have been self-calendared or specially set for today (9/18/18 at 2:00 p.m.).
L&B case: Status Conference on Mr. Layfield's Ex Parte Motion to stay proceedings etc. (L&B dkt. 325) (the "Ex Parte Motion"). This Court issued an order (L&B dkt. 325) denying Mr. Layfield's Ex Parte Motion to the extent (if any) that it sought immediate relief (e.g., excusing Mr. Layfiled or others from the bar date; staying all matters involving him or others; converting the L&B case to chapter 7; etc.). This Court also set this status conference on Mr. Layfield's Ex Parte Motion. Wellgen filed a response (L&B dkt. 332).
The tentative ruling is that this Court should not take any action at this time. Rather, Mr. Layfield must follow the applicable statutes and rules and file separate motions and/or adversary proceedings for each type of relief that he
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seeks in his Ex Parte Motion, instead of combining multiple requests in a single document that does not include points and authorities, includes numerous assertions that are not supported by admissible evidence, and does not otherwise comply with the applicable statutes and rules.
For example, Mr. Layfield would need to file and serve a motion to convert the L&B case to chapter 7, and a separate motion to consolidate the L&B case with the Max-CA case. Each of those documents would need to be supported by appropriate points and authorities, declarations, etc.
Although Mr. Layfield requests that this Court establish briefing schedules on the foregoing and other matters, that appears to be premature or unnecessary. The Local Bankruptcy Rules ("LBR") and the self-calendaring procedures (available at www.cacb.uscourts.gov) establish briefing and hearing schedules for typical motions, and there is no showing that special procedures are necessary or appropriate at this stage.
Mr. Layfield (and all other parties in interest) are reminded that they must comply with the Posted Procedures of Judge Bason (available at www.cacb.uscourts.gov). In addition, they may wish to familiarize themselves with this Court's earlier rulings in these various proceedings. See, e.g., L&B dkt. 288 (order denying Mr. Barrett's motion to stay proceedings).
Nothing in the preceding paragraphs should be interpreted as expressing any opinion about whether Mr. Layfield does or does not have standing or have grounds to seek any of the relief he mentions. For example, both standing and grounds for relief are unclear with respect to Mr. Layfield's request to establish that "all unpaid client claims and unpaid liens relating to client claims must be given priority over any secured creditors or Trustee compensation."
First, this Court is not certain what Mr. Layfield means. Second, it is unclear whether Mr. Layfield has standing to seek a determination of priority of L&B's client's claims over secured creditors' claims or any administrative expenses - presumably that is an issue between those parties. Third, assuming for purposes of discussion that Mr. Layfield is seeking some sort of declaratory judgment that he has an attorney lien with priority over the lien held by Welgen Standard, LLC (as successor to Advocate Capital, Inc.) ("Wellgen"), it is unclear whether he has any standing to assert an attorney lien (which might belong to L&B rather than Mr. Layfield) or any grounds for such relief (e.g., does he assert an attorney lien by operation of nonbankruptcy law, or contract, or on some other ground?). Fourth, it would be premature to set a briefing schedules before he
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has filed any adversary proceeding and motion(s) or claim objections or whatever other papers may be necessary or appropriate, complete with points and authorities, supported by admissible evidence.
In sum, the tentative ruling to DENY Mr. Layfield's Ex Parte Motion, without prejudice to any properly presented requests for the relief that he appears to seek. The tentative ruling is to direct Wellgen's counsel to prepare an order denying Mr. Layfield's Ex Parte Motion for the reasons stated in this tentative ruling (as they may be augmented or modified at the hearing).
Lay-Invol. case: status conference on Mr. Layfield's "Special Appearance For The Limited Purpose Of Objecting To The Employment Of Jeffrey Golden's Law Firm And The Appointment Of An Interim Trustee" (Lay-Invol. dkt. 37, the "Special Appearance"). Mr. Layfield appears to be attempting to combine at least three separate matters in a single document: (a) limiting his appearance in some way (although it is unclear whether he can limit his appearance and also request the other relief he seeks); (b) challenging the appointment of an interim chapter 7 trustee (the "Interim Trustee") and/or objecting to the selection of Mr. Avery as such Interim Trustee (see Lay-Invol. dkt. 13, order) (it is unclear what relief Mr. Layfield actually seeks); and (c) objecting to the pending application (Lay-Invol. dkt. 30) by the Interim Trustee to employ Weiland Golden Goodrich LLP (Mr. Golden's law firm) (the "Weiland Golden" firm). As with other matters, he has not included points and authorities, he makes numerous allegations that are not supported by admissible evidence, and he has not followed proper procedures.
Due to these deficiencies the tentative ruling is to deny Mr. Layfield's request to set these matters (and others) for hearing on October 23, 24, or 25. See Lay-Invol. dkt. 37, p.3. In addition, the tentative ruling is to deny his request for a stay of various proceedings pending resolution of these matters, for the same reasons why this Court denied his request for a similar stay in the L&B case. See L&B dkt. 325.
Nevertheless, the tentative ruling is to hold a status conference on Mr. Layfield's Special Appearance to address the following issues. To the extent he is attempting to object (a) to the appointment of an Interim Trustee generally or Mr. Avery as such Interim Trustee in particular, or (b) to the Interim Trustee's application to employ the Weiland Golden firm, the parties should be prepared to address:
interim trustee: whether the objection to the appointment of any
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Interim Trustee is intended to be a request for reconsideration under Rule 9023 or 9024 (Fed. R. Bankr. P.) of this Court's order appointing Mr. Avery; and whether Mr. Layfield can meet the standards under those rules (or any other applicable rules or decisions), including whether Mr. Layfield was properly served and whether he has grounds to assert that there is not cause for appointment of an interim trustee at all (if that is his objection), or grounds to object to Mr. Avery as the Interim Trustee who was selected (if that is his objection); and
employment of law firm: whether this Court should, sua sponte, address the alleged conflict of interest in the Weiland Golden firm representing both the Chapter 7 Trustee (on matters not involving Wellgen) and Wellgen (see 11 U.S.C. 327(c)), or the alleged wrongdoing by that law firm (which it denies, see Lay-Invol. dkt. 37-5, Ex.I, Part V, at PDF pp. 59 et seq.), including whether this Court should set those issues for hearing; whether this Court should set a deadline for Mr. Layfield to file and serve points and authorities and any supporting evidence; and whether the United States Trustee should be requested to participate.
The tentative rulings on these issues are that, although Mr. Layfield's Special Appearance is inadequate to place the foregoing matters at issue, nevertheless the administration of these cases might be impeded unless this Court establishes a briefing schedule to obtain greater certainty, in view of Mr. Layfield's arguments, about who does or does not have authority to act for the bankruptcy estates. The tentative ruling is to give Mr. Layfield a deadline of 9/25/18 to file and serve his objections; a deadline of 10/2/18 for any response by the Interim Trustee or the Weiland Golden firm; a deadline of 10/9/18 for any reply; and a hearing date of 10/16/18 at 2:00 p.m., and to invite the U.S. Trustee to file papers by the same deadlines and appear at the hearing. The tentative ruling is to direct the Weiland Golden firm to prepare a proposed order memorializing those deadlines (with an attached copy of this tentative ruling, thereby adopting it as this Court's final ruling regarding those deadlines and the reasons for setting them).
L&B case, Pachulski v. Layfield V, LLC and Philip Layfield (Adv. No. 2:18- ap-1050-NB) ("CondoAdv."), suggestion of bankruptcy (CondoAdv. dkt. 22), and related motions for relief from automatic stay (L&B dkt. 143, 144) (the "WF R/S
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Motions"). Mr. Layfield points out that the order granting the plaintiff's motion for a default judgment (CondoAdv. dkt. 18) and the judgment (CondoAdv. dkt. 17), were entered on 5/25/18, which is a few days after the involuntary bankruptcy petition was filed against him (LayInvol. dkt.1) on 5/21/18. This Court notes that the WF R/S Motions are scheduled for a continued hearing on 10/2/18 at 1:00 p.m.
The parties should be prepared to address how this adversary proceeding should be prosecuted going forward, and whether they are seeking any procedural orders or other relief from this Court to aid in the diligent prosecution of this matter. The tentative ruling is, as a matter of sua sponte calendar management, to continue the WF R/S Motions to 10/16/18 at 2:00 p.m., to be heard concurrent with the other matters in these interrelated cases. The tentative ruling is to direct counsel for Wellgen to file a notice of that continued hearing and serve it no later than 9/21/18 via U.S. mail on Wells Fargo Bank, N.A. as well as the debtors, trustees, and other parties asserting any interest in the subject condominimum properties in the L&B, Lay-Invol., and Max-CA cases.
Mr. Layfield's future filings. This Court has reviewed all of the papers filed by Mr. Layfield in the three interrelated cases and the adversary proceedings in those cases. Those papers are disorganized and exceptionally lengthy.
This Court recognizes that Mr. Layfield may have been impeded by his recent incarceration and other changes in his life, but any litigant, particularly an attorney, must provide coherent arguments, points and authorities as needed, and admissible evidence on relevant factual issues. In future, this Court may strike papers that do not meet these minimum standards and comply with the applicable rules.
Mr. Layfield's requests for electronic service. This Court is confused by Mr. Layfield's requests (L&B dkt. 333, p.2:21-23; Lay. dkt. 37, p.2) that he be granted some sort of special electronic ability to file or be served. Although Mr. Layfield claims that he is "unable to receive ECF notifcations," he does not explain why that is so.
Attorneys can sign up for electronic filing and notices ("CM/ECF" and "NEF"). Even non-attorneys can gain access to the docket ("PACER"). All parties in interest can receive email service by filing a request for special notice and consent to such service (and, for debtors, there is the additional option of
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signing up for electronic notices via this Court's "DeBN" program - instructions are available at www.cacb.uscourts.gov). See Rule 5(b)(2)(E)&(F) (Fed. R. Civ. P.) (incorporated by Rules 7005 & 9014(b), Fed. R. Bankr. P.).
To the extent that Mr. Layfield is requesting any relief that is not already available to him, this request is DENIED.
L&B Case: Mr. Layfield's purported transfers of various claims to himself (dkt. 335-341) (the "Self-Transfers"). The parties should be prepared to address the Self-Transfers.
Max-CA case. This Court notes that Mr. Barrett has filed a motion for relief from the automatic stay (Max-CA dkt. 108, the "Barrett R/S Motion"), set for hearing on 10/2/18 at 10:00 a.m., to assert counterclaims in one of the adversary proceedings in the L&B Case (Wellgen Standard, LLC v. Max. Legal (Cal.) LLP, Adv. No. 2:17-ap-01503-NB). Although this Court has considered sua sponte rescheduling the Barrett R/S Motion (to be heard concurrent with the 10/16/18 hearings tentatively set by this tentative ruling), it appears more efficient to leave the existing hearing as is.
Mr. Layfield's address for service. This Court notes that Mr. Layfield has used variations of an address in Washington, D.C., as well as other addresses, in various documents filed recently. These multiple addresses seem prone to confusing and prejudicing parties in interest, including Mr. Layfield himself, because an address filed in one case or proceeding might or might not be used (or even known to parties) in a different case or proceeding, and because Mr. Layfield has asserted in the past that he has not been properly served.
Accordingly, the tentative ruling is to issue an order directing Mr. Layfield, no later than 9/24/18, (a) to file in each of the three bankruptcy cases (L&B, Lay-Invol., and Max-CA) and in each adversary proceeding in which he has filed any papers or is named in any capacity, a notice designating a single address for
U.S. mail or overnight delivery to be used in all of these cases and related proceedings, as well as a single email address, and a statement about whether he agrees to accept service via email, and (b) to serve that notice via U.S. mail on all parties in interest (the entire creditor matrix in all cases and adversary proceedings). If Mr. Layfield fails to do so, the tentative ruling is that this Court will interpret his failure to respond as an attempt to maintain a factual ambiguity
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about which address is appropriate, and this Court may issue an order selecting the address that appears to be the most recent and, possibly, establishing evidentiary presumptions about service or other matters. The tentative ruling is to direct Wellgen to prepare a proposed order reflecting the foregoing, and to attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling on the procedure for Mr. Layfield's address to be determined.
Joint Status Conference: In addition to the above, due to the interrelated nature of the L&B, Lay-Invol., and Max-CA cases, this Court finds it appropriate to conduct a joint status conference in each of these cases (2:17-bk-19548-NB; 2:18-bk-15829-NB; 2:17-bk-18433-NB) on 10/16/18 at 2:00 pm. This joint status conference will be used to address any concerns this Court or the parties address at this 9/18/18 hearing, and any other pending issues that may arise.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Docket 31
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 7/10/18:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 306).
Appearances are not required on 7/10/18.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 133, 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 11/6/18 at 1:00 p.m., brief status report due 10/23/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required.
Current issues. This Court has reviewed the Chapter 11 Trustee's status report (dkt. 283).
Surcharge motion under 11 U.S.C. 506(c) (dkt. 239). The Trustee and Wellgen have entered into a Stipulation resolving the motion (dkt. 281). This Court has issued an order setting this matter for hearing. The parties are directed to address the issues raised in that order. In addition, the parties are directed to address what will happen if there are any proceeds in excess of both
the maximum amount distributed to Wellgen (para. 9 of the Stipulation) and
the maximum amount distributed to the Trustee and his counsel (para. 10 of the Stipulation).
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 133, 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 7/10/18 at 1:00 p.m., brief status report due 6/26/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance
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arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 229).
Appearances are not required on 2/27/18.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 5/1/18 at 1:00 p.m., brief status report
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due 4/17/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's status report (dkt. 153).
Appearances are not required on 12/12/17.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: 2/5/18 (timely served, dkt. 157)
Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 2/27/18 at 1:00 p.m., brief status report due 2/13/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 10/17/17:
Adopt the trustee's recommendation regarding re-issuance of a notice of case commencement, with a new bar date of December 31, 2017. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/19/17:
Appearances required.
Current issues.
Order for relief. This case was commenced as an involuntary chapter 7, and thereafter the debtor filed a motion (dkt. 19) to convert this case to chapter 11, which this court treated at a hearing on 8/8/17 as a consent to an order for relief conditioned on such converstion. This court orally ordered relief and granted the motion to convert to chapter 11, and although the latter order was reduced to writing (dkt. 25) the former was not. The tentative ruling is to direct the Chapter 11 Trustee to prepare and lodge a written order, memorializing that the oral order for relief was effective on 8/8/17. The parties should be prepared to address whether that written order should modify any deadlines that otherwise would apply (see next paragraph), notwithstanding that all parties in interest appear to have been present in person or on the telephone at that 8/8/17 hearing.
Lack of information. The Chapter 11 Trustee's status report (dkt. 79) indicates that the debtor has yet to provide information on numerous issues, notwithstanding Rule 1007(a)(2), (b) and (c). The docket does not reflect that the debtor has filed bankruptcy schedules, a statement of financial affairs, or other information, or filed any motion for extention of time. What is the current status, and what additional action may be appropriate?
Clients. This court has approved a client transfer protocol (dkt. 83). What is the status of those transfers?
Reconversion? The debtor's status report (dkt. 80, at PDF p.3:4-21)
10:00 AM
suggests that, although the debtor and other parties in interest stipulated (dkt. 38) to the appointment of a chapter 11 trustee, and this court approved that stipulation (dkt. 42), nevertheless this case is essentially being operated as a chapter 7 liquidation and should be converted back to chapter 7. What are the positions of parties in interest on that issue?
Joint administration? Should this case be jointly administered (not procedurally consolidated) with the case of Maximum Legal (California), LLP (Case No. 2:17-bk-18433-NB)?
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
Bar date: TBD after bankruptcy schedules are filed.
Plan/Disclosure Statement*: Do not file or serve until further order of this court.
Continued status conference: 10/17/17 at 1:00 p.m., brief status report due 10/10/17.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
Adv#: 2:18-01050 Pachulski v. Layfield V, LLC, a Delaware limited liability comp
Docket 27
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Layfield V, LLC, a Delaware limited Pro Se Philip Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski Represented By Steven J Kahn Malhar S Pagay
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
Adv#: 2:18-01050 Pachulski v. Layfield V, LLC, a Delaware limited liability comp
Docket 1
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Layfield & Barrett matter (calendar no. 1, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 5/1/18:
The tentative ruling is to continue this status conference to the date and time set forth below, in view of the Chapter 11 Trustee's unilateral status report (dkt. 11). Appearances are not required on 5/1/18.
Current issues. There are no issues for this court to raise sua sponte.
Deadlines: This adversary proceeding has been pending since 2/22/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A
10:00 AM
Dispositive motions to be heard no later than: N/A Status Report: 6/12/18.
Continued status conference: 6/26/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Layfield V, LLC, a Delaware limited Pro Se Philip Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski Represented By Steven J Kahn
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
10:00 AM
Docket 95
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
Docket 100
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
Docket 93
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
Docket 54
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
Docket 48
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
fr. 10/26/18
Docket 41
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
stay and assessing sanctions including actual and punitive damages fr. 10/26/18
Docket 42
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
Law Firm and the appointment of an interim trustee fr. 10/26/18
Docket 37
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch
10:00 AM
Docket 1
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Layfield & Barrett matter (calendar no. 1, 9/18/18 at 2:00 p.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
WILMINGTON TRUST
vs DEBTOR
Docket 36
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Paul Albert Satterlee Represented By Onyinye N Anyama
Movant(s):
Wilmington Trust, National Represented By Dipika Parmar Cassandra J Richey Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 43
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 45).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Mario Avelar Represented By Roger J Plasse
Movant(s):
U.S. Bank National Association Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CITIMORTGAGE, INC.
vs DEBTOR
Docket 72
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a).
Relief in other past or pending cases
The motion (dkt. 72 at PDF p.8) requests "a provision that makes annulment binding in any bankruptcy cases pending as of 11/06/2018, no matter who the debtor may be, in order to prevent back-dated transfer instruments from circumventing prospective relief and affecting the 11/06/2018 trustee sale." From the facts alleged in the motion there is ample cause for such relief, but the tentative ruling is that procedurally such relief must be sought in a different manner. See In re Ervin (Case No. 14-
bk-18204-NB, docket no. 311). Accordingly, the tentative ruling is to deny the request for such relief without prejudice to supplemental proceedings seeking such relief.
Retroactive relief
10:00 AM
Grant the request for retroactive annulment of the stay. See In re
Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same).
Accordingly this motion should not subject Debtor to a 180-day bar on filing another bankruptcy case if, in the future, Debtor requests and obtains a voluntary dismissal (11 U.S.C. 109(g)(2)) under authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey,
10:00 AM
476 B.R. 261, 270. Based on the foregoing, the tentative ruling is to condition any relief from the automatic stay on this Court's determination that sections 109(g)(2) and 362(b)(21)(A) shall not apply to Debtor or any property other than the property that is the subject of this motion for relief from the automatic stay.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Madalyn Mary Phillips Represented By Barry E Borowitz
Movant(s):
CitiMortgage Inc. Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 50
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Allyson M Theophile Represented By Matthew D. Resnik
Movant(s):
JPMorgan Chase Bank, National Represented By
Merdaud Jafarnia Nancy L Lee
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 26
- NONE LISTED -
Debtor(s):
Genese L Hill Represented By
Bradley J Yourist
Movant(s):
Wells Fargo Bank, N.A. Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
U.S. BANK N.A. vs
DEBTOR
Docket 40
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Delores Parker Represented By Nima S Vokshori
Movant(s):
U.S. Bank, N.A., successor trustee to Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 36
Debtor(s):
Raju Maity Represented By
Sanaz S Bereliani
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [PP] SANTANDER CONSUMER USA INC
vs
DEBTOR
Docket 54
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply. This case has been dismissed, which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief.
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Myrna Garcia Lorenzo Represented By Peter L Nisson
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILLIAM L. JURADO
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d) (2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jose G Fernandez Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FEDERAL NATIONAL MORTGAGE ASSOCIATION
vs DEBTOR(S)
Docket 65
Tentative Ruling for 12/11/18 (same as 11/6/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see Loan Modification Final Report, dkt. 89).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to provide an update regarding the LMM status, and any other matters relevant to this motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Continue to 9/18/18 at 10:00 a.m. to address the following issues. Appearances are not required on 8/7/18.
At the 5/22/18 hearing, this Court continued the matter for the debtors to complete the LMM Program (see Order granting motion to commence LMMP, dkt. 80). This Court has reviewed the debtors' filed status report (dkt. 82), which states that debtor is current with all adequate protection payments.
Nothing in this tentative ruling keeps the parties from alerting chambers of any wish to appear at the 8/7/18 hearing in order to inform this Court about any other issues pertaining to the underlying motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 75).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Carlos Roberto Calderon Represented By Tamar Terzian
Joint Debtor(s):
Rosalva Calderon Represented By James T King Tamar Terzian
Movant(s):
Federal National Mortgage Represented By
Andrew David Goldberg Lisa B Singer
Renee M Parker
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, N.A.
vs DEBTOR
Docket 41
Debtor(s):
Jerrod Warren Overholt Represented By Elena Steers
Joint Debtor(s):
Rebekah Lynn Shevelew Represented By Elena Steers
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MTGLQ INVESTORS, L.P.
vs DEBTOR
Docket 26
Tentative Ruling for 12/11/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether escrow has closed on the subject property, and any other matters relevant to the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to a continuance or agree to the terms of an adequate protection order (see the debtor's response, dkt. 32).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Elizabeth Jean Gates Represented By Steven A Alpert
Movant(s):
MTGLQ INVESTORS, L.P., its Represented By Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HERBERT V. LARSON
vs DEBTOR
Docket 19
Debtor(s):
Matthew Michael Totaro Represented By Michael R Totaro
Movant(s):
Herbert V. Larson Jr. Represented By Kelvin J Lo
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 44
Tentative Ruling for 12/11/18:
Appearances required. The hearing was continued from 11/6/18 based on the parties contemplation that they would enter into an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order .
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the
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automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Josephine Louise Starling Represented By Heather J Canning Barry E Borowitz
Movant(s):
Wilmington Savings Fund Society, Represented By
Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK TRUST COMPANY AMERICAS
vs DEBTOR
Docket 23
Debtor(s):
Ana R Sosa Represented By
Leon D Bayer
Movant(s):
DEUTSCHE BANK TRUST Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CHAMPION MORTGAGE COMPANY
vs DEBTOR
Docket 32
Tentative Ruling for 12/11/18:
Appearances required. At the hearing on 11/27/18 this Court was persuaded to continue this matter. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 34).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/27/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11 U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the
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automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Muriel Ann Carr Represented By Julius Johnson
Movant(s):
Champion Mortgage Company Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 49
Tentative Ruling for 12/11/18 (same as 11/27/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 52).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Salvador Molina Ramones Represented By Brian J Soo-Hoo
Movant(s):
HSBC BANK USA, NATIONAL Represented By
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
11:00 AM
Docket 41
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Paula L Grandchamp Represented By Scott Kosner
Trustee(s):
Timothy Yoo (TR) Represented By Carmela Pagay Jeffrey L Sumpter
11:00 AM
Docket 39
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Paula L Grandchamp Represented By Scott Kosner
Trustee(s):
Timothy Yoo (TR) Represented By Carmela Pagay Jeffrey L Sumpter
11:00 AM
Re FEHA Violations and Wrongful Termination Claims of Debtor
Docket 28
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Arnoldo O Martinez Represented By Daniel King
Trustee(s):
Carolyn A Dye (TR) Pro Se
11:00 AM
Docket 278
Overrule the opposition by Mr. Merritt (dkt. 280), grant the motion (dkt. 278), and disallow claim no. 29 to the extent it asserts any secured or unsecured claim against Debtor's bankruptcy estate, all for the reasons stated in the motion and the reply (dkt. 281). The foregoing is without prejudice to whatever equity interest Mr. Merritt may or may not have in Debtor.
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lake Mathews Mineral Properties, Represented By
Michael Jay Berger Cassandra J Richey
Shirley Smith - SUSPENDED -
Trustee(s):
Elissa Miller (TR) Represented By Franklin C Adams
11:00 AM
Juliet Y Oh
11:00 AM
Docket 8
Tentative Ruling for 12/11/18:
Grant the motion, subject to a redemption value of $9,882, based on the debtor's supplemental declarations (dkt. 10, 11). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of these tentative rulings for 11/6/18 (reproduced below) and 12/11/18, thereby adopting them as the final ruling of this Court. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Continue to 12/11/18 at 11:00 a.m., with a deadline of 11/16/18 to file and serve a declaration to address the following issues. Appearances are not required on 11/6/18.
Under 11 U.S.C. 722 redemption requires that Debtor pay "the holder of [the] lien the amount of the allowed secured claim ...." Under 11 U.S.C.
506(a)(2), "If the debtor is an individual in a case under chapter 7 ..., [the] value [used to determine the secured claim] with respect to personal property ... shall be determined based on the replacement value of such
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property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined."
Debtor's motion uses the Kelly Blue Book valuation to "Buy from a Private Party." Dkt. 8, Ex.B (emphasis added). The tentative ruling is that Debtor must provide evidence of what it would cost to purchase (not trade-in) from a retail merchant (not a private party) a vehicle of the same make, model, and condition as Debtor's vehicle.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Denise Renee Schlegel Represented By Sanaz S Bereliani
Movant(s):
Denise Renee Schlegel Represented By Sanaz S Bereliani
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
11:00 AM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18
Docket 1
Tentative Ruling for 12/11/18:
Continue to 1/29/19 at 11:00 a.m. in view of the extended deadlines (dkt. 59) and the parties' status report (dkt. 60). Appearances are not required on 12/11/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Continue to 12/11/18 at 11:00 a.m., based on Plaintiff's unilateral status report (adv. dkt. 52), with a brief status report due 12/4/18. At the continued status conference Defendants' counsel is directed to address why they did not join in that status report, or file their own. Appearances are not required on 11/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Continue to 11/6/18 at 11:00 a.m., based on reports from the mediator and the parties (adv. dkt. 48-50). Brief status report due 10/30/18. Appearances are not required on 10/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Continue to 11/6/18 at 11:00 a.m., based on reports from the mediator and the parties (adv. dkt. 48-50). Brief status report due 10/30/18. Appearances are not required on 10/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED FOR BREVITY]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
11:00 AM
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C Vanderhoof
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
11:00 AM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18
Docket 1
Tentative Ruling for 12/11/18:
Appearances required. The parties should be prepared to address (1) why a proposed order memorializing the extended deadlines was not lodged, as directed in the adopted tentative ruling for 11/6/18 (reproduced below) and (2) why a timely status report was not filed as required by that same adopted tentative ruling. The tentative ruling is to continue this status conference to 1/29/19 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
(1) Extend various deadlines as set forth below. (2) Continue this Status Conference to 12/11/18 at 11:00 a.m., based on the parties' status report (adv. dkt. 38), with a brief status report due 12/4/18. Appearances are not required on 11/6/18.
Extended deadlines: Extend the discovery cutoff to 2/28/19 (per adv. dkt. 38, p.2:7-9), with an extension of the same number of days for the other remaining deadlines in this Court's schedulings order (adv. dkt. 34) (i.e., the deadline for exchange of any expert reports, and for any hearing on any
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dispositive motions). In addition, add a deadline for the close of discovery from experts (depositions etc.) two weeks after their reports are due. Plaintiff is directed to lodge a proposed scheduling order containing these new deadlines, and to file and serve a notice of lodgment or else obtain the signature of Defendants' counsel approving the order as to form.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Continue to 11/6/18 at 11:00 a.m., based on the parties' status report (adv. dkt. 37). Brief status report due 10/30/18. Appearances are not required on 10/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The court has reviewed the parties' joint status report (adv. dkt. 23) and the other filed documents and records in this adversary proceeding.
The plaintiff states (dkt. 23, p.2) that he requested entry of a default against defendants Andrae Perez and Accelerated Capital Group, Inc., but the Clerk
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of this Court has issued notices of non-entry of defaults (dkt. 15, 16). When will the plaintiff correct the deficiencies?
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. docket number(s) 23).
Deadlines: This adversary proceeding has been pending since 11/21/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 12/31/18 Expert(s) - deadline for reports: 1/14/19
Dispositive motions to be heard no later than: 2/11/19 Joint Status Report: 9/4/18
Continued status conference: 9/18/18 at 11:00 a.m.; brief status report due 9/4/18.
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing, this Court continued the matter to allow the parties time to meet and confer about the various deadlines that this court should set in this adversary proceeding and/or court-ordered mediation. This matter was further continued to today's date for the parties to participate in mediation on or about 5/21/18 (see Order, adv. dkt. 21). This Court also
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directed the parties to file a status report by 5/29/18, but the parties have not done so--for a second time.
There is no tentative ruling, but the parties are directed to address why they have not filed a status report, and to provide an oral status report, and are cautioned that continued failure to adhere to the applicable rules and orders of this Court may result in sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 3/6/18 hearing, this Court continued the matter to allow the parties time to meet and confer about the various deadlines that this court should set in this adversary proceeding and/or court-ordered mediation. This court also directed the parties to file a status report by 4/3/18, but the parties have not done so.
There is no tentative ruling, but the parties are directed to address why they have not filed a status report, and to provide an oral status report, and are cautioned that continued failure to adhere to the applicable rules and orders of this Court may result in sanctions. The tentative ruling is to continue this status conference to 5/29/18 at 11:00 a.m. with a brief status report due 5/15/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties requested a brief continuance of this status conference from 2/27/18 to today's date (see Joint Status Report, adv. dkt. 10). At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). There is no tentative ruling, but the parties should be prepared to discuss the status of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 3/6/18 at 11:00 a.m. Appearances are not required on 2/27/18.
Reasons: At the status conference on 1/23/18 there was no appearance for the plaintiff, and this Court was persuaded that it was premature to adopt the deadlines stated in the tentative ruling for that status conference (reproduced below). The plaintiff and one defendant (the debtor) have now filed a joint status report (adv. dkt. 10) requesting a brief continuance.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address why they failed to file the required status report, and also the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/6/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
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Deadlines/dates: This adversary proceeding has been pending since 11/21/17. The tentative ruling is to set the following deadlines/dates. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 5/1/18 Expert(s) - deadline for reports: 5/8/18
Expert(s) - discovery cutoff (if different from above): 5/15/18 Dispositive motions to be heard no later than: 6/26/18
Joint Status Report: 2/6/18
Continued status conference: 2/27/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
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Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:17-01174 Stardust Vacation Club and Americana Vacation Club v. MacMillan
fr. 5/2/17, 06/06/17, 8/22/17, 11/14/17, 01/30/18, 5/1/18, 6/26/18, 08/14/18, 9/18/18, 11/6/18
Docket 1
Tentative Ruling for 12/11/18:
Continue to 1/29/19 at 11:00 a.m. for the plaintiff to lodge a proposed order dismissing this adversary proceeding per the parties' stipulation (dkt. 45).
Appearances are not required on 12/11/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address whether scheduling or other matters are affected by the unresolved issues re settlement noted in the parties' joint status report (adv. dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Continue to 11/6/18 at 11:00 a.m., with a brief status report due 10/23/18 (unless this matter is mooted by this Court approving the parties' settlement). See dkt. 34. Appearances are not required on 9/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Set a deadline of 8/17/18 for the parties to file a corrected copy of their status report (adv. dkt. 31, which has illegible text at the top of p.2), and continue this status conference to 9/18/18 at 11:00 a.m., with a brief status report due 9/4/18 (unless this matter is mooted by this Court approving the parties' settlement). See adv. dkt. 31. Appearances are not required on 8/14/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Continue to 8/7/18 at 11:00 a.m., with a brief status report due 7/24/18 (unless this matter is mooted by this Court approving the parties' settlement). See dkt. 29 (status report). Appearances are not required on 6/26/18.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This court has reviewed the parties' joint status report (dkt. 27).
Mediation. The tentative ruling is to order mandatory mediation (again), with a deadline of 5/15/18 for the parties to lodge proposed mediation order(s).
Deadlines: This adversary proceeding has been pending since 2/24/17. Due to the parties' prior delays and an anticipated settlement the normal deadlines for completion of discovery and other matters have not been applied. The tentative ruling is to set the following deadlines, to run concurrent with the parties' mediation. The parties are cautioned that once the following deadlines have been established this Court is unlikely to be persuaded to amend them.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 9/3/18. Expert(s) - deadline for reports: 9/17/18.
Expert(s) - discovery cutoff (if different from above): 9/24/18. Dispositive motions to be heard no later than: 11/6/18.
Joint Status Report: 6/12/18.
Continued status conference: 6/26/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/11/17.
Pretrial conference: 11/27/18 at 2:00 p.m.
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Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: 12/6/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 12/10/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address the results of their mediation. In future, the parties are cautioned that they are required under the Local Bankruptcy Rules to file a status report.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/22/17:
Continue to 11/14/17 at 11:00 a.m. in view of the parties' mediation scheduled for 10/27/17 (adv. dkt. 18). Appearances are not required on 8/22/17.
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If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 6/6/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 10) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below?
Deadlines: This adversary proceeding has been pending since 2/24/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 7/21/17. Expert(s) - deadline for reports: 8/4/17.
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Expert(s) - discovery cutoff (if different from above): 8/18/17. Dispositive motions to be heard no later than: 9/29/17.
Joint Status Report: 8/29/17.
Continued status conference: 9/12/17 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/11/17.
Pretrial conference: 10/17/17 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: 10/20/17 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 10/25/17 at 9:00 a.m.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Plaintiff(s):
Stardust Vacation Club and Represented By Bruce Grego
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
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Adv#: 2:17-01485 Gonzalez v. Macmillan et al
fr. 12/5/17, 02/13/18, 3/20/18, 4/17/18, 07/17/18, 08/14/18, 10/16/18, 11/27/18
Docket 1
Tentative Ruling for 12/11/18:
Continue to 1/29/19 at 11:00 a.m., with a brief status report due 1/15/19. Appearances are not required on 12/11/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/27/18:
Continue to 12/11/18 at 11:00 a.m., per the latest status report (dkt. 56). Appearances are not required on 11/27/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 10/16/18:
Appearances required. There is no tentative ruling but the parties should be prepared to address the following issues.
Background
Plaintiff filed a motion (adv. dkt. 14) for summary judgment on his first claim for relief (constructively fraudulent transfer) and the second claim for relief (declaratory relief that the purported trust is ineffective to prevent creditors from reaching the assets) in his complaint (adv. dkt. 1). This Court issued an order (adv. dkt. 31) denying summary judgment on the first claim but granting it on the second, for the reasons stated therein - principally the reasons in the Revised Tentative Ruling for 3/20/18 (reproduced below).
Defendants appealed. The District Court dismissed the appeal as interlocutory. See adv. dkt. 52, 53. The parties' joint status report states (adv. dkt. 54, p.4, sec.G) that they have executed but not filed a stipulation "that the dismissed appeal can be re-filed as an interlocutory appeal but on the condition that the trial proceed on the remaining fraudulent transfer claim for relief."
Current issues
It is not clear what the parties intend, or what procedural steps this Court should take. Whatever is in the parties' unfiled stipulation presumably will not bind the District Court (or any other court hearing the appeal) in deciding whether to grant leave to appeal this Court's interlocutory ruling, so what do the parties hope to accomplish with their stipulation? Moreover, the parties' stated intention to proceed simultaneously in both this Bankruptcy Court and the District Court usually is not possible because an appeal generally deprives this court of jurisdiction. Cf. Rule 54(b) (Fed. R. Civ. P., incorporated by Rule 7054, Fed. R. Bankr. P.), and compare Rule 8008 (Fed.
R. Bankr. P.). To the extent, if any, that this Court has discretion to grant any relief that would make such dual-tracking possible, is that an appropriate use of judicial resources? On a separate issue, if the plaintiff intends to proceed with the first claim for relief, does the plaintiff plan to amend the complaint to cure the deficiencies in that claim (constructively fraudulent transfer) noted in the tentative ruling for 3/20/18?
The tentative ruling is to continue this status conference to 11/6/18 at 11:00 a.m. with a deadline of 10/23/18 for the parties to file and serve
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whatever papers they deem appropriate to address the foregoing issues and any other relevant issues at this stage of these proceedings.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Continue to 10/16/18 at 11:00 a.m., with a brief status report due 10/2/18.
See status report (adv. dkt. 51). Appearances are not required on 8/14/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Continue to 8/14/18 at 11:00 a.m. as requested by the parties in their joint status report (see adv. dkt. 50), with a brief status report due 7/31/18.
Appearances are not required on 7/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should apprise this court about the status of any appeals or other matters (see dkt. 31, order granting in part plaintiff's motion for summary judgment, and dkt. 35, notice of appeal). The tentative ruling is to set a continued status conference for 7/17/18 at 11:00 a.m., with a brief status report due 7/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/20/18:
Appearances required.
Motion for summary judgment (adv. dkt. 14-18, the "MSJ"); opposition papers (adv. dkt. 22-25); and reply papers (adv. dkt. 26-27). The tentative ruling is to deny in part and grant in part the MSJ, as set forth below.
Legal standards. The legal standards governing motions for summary judgment are well known, do not appear to be disputed by the parties, and need not be repeated in this tentative ruling.
First claim for relief (fraudulent transfer). Although the complaint (adv. dkt.1) asserts fraudulent transfer claims under both California law and the Bankruptcy Code, the MSJ limits this to 11 U.S.C. 548. The MSJ also asserts only constructive, not actual, fraud. See adv. dkt. 14, pp.2:21-3:1.
The complaint alleges less than reasonably equivalent value (11
U.S.C. 548(a)(1)(B)(i)) - namely, transfers by the debtors/defendants for no value from the debtors and/or their revocable trusts (the assets of which apparently could be reached by creditors) to irrevocable trusts. But to establish the elements of a constructively fraudulent transfer the plaintiff must also establish one of three types of insolvency (commonly referred to as
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"balance sheet," "inadequate capital," or "cash flow" insolvency) or else a transfer to an insider under an "employment contract." See 11 U.S.C. 548(a) (1)(B)(ii)(I)-(IV). There is no allegation about any employment contract, so the plaintiff must establish some type of insolvency.
The MSJ refers to balance sheet insolvency (11 U.S.C. 101(32A)). But the complaint never alleges that type of insolvency, so the plaintiff cannot be granted partial summary judgment as to that element (11 U.S.C. 548(a)(1)(B) (ii)(I)).
The complaint alleges inadequate capital and inadequate cash flow (in language that roughly parallels 11 U.S.C. 548(a)(1)(B)(ii)(II)&(III)). But the MSJ extrapolates that those types of insolvency could be presumed based on the bankruptcy schedules many months after the transfer, and from the sheer number of lawsuits and eventual judgments against the defendants and other circumstantial evidence. Those things might (or might not) be persuasive at trial, but they are insufficient to establish a lack of genuine issue of fact.
Second claim for relief (declaratory relief related to nature of the trusts). The complaint (adv. dkt. 1, para. 23) seeks a declaratory judgment (i) that the debtors/defendants are "beneficiaries" of the trusts within the meaning of California Probate Code 15304, (ii) that the benefits the debtors/defendants receive from the trusts are "property of the estate" under 11 U.S.C. 541, and (iii) that the trusts qualify as "self-settled trusts" under California law, which the MSJ uses as shorthand for a trust the assets of which are reachable by creditors.
Various provisions of the Bankruptcy Code define what property is part of the bankruptcy estate:
The bankruptcy estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). It does not include, however, "any power that the debtor may exercise solely for the benefit of another," 11
U.S.C. § 541(b)(1), nor does it include "[p]roperty in which the debtor holds ... only legal title and not an equitable interest." 11
U.S.C. § 541(d). Similarly, the estate does not include property containing "[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law." 11 U.S.C. § 541(c)(2). [In re Cutter, 398 B.R. 6, 18-19 (9th Cir. BAP 2008).]
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Under California law:
If the settlor is a beneficiary of a trust created by the settlor and the settlor’s interest is subject to a provision restraining the voluntary or involuntary transfer of the settlor’s interest, the restraint is invalid against transferees or creditors of the settlor. The invalidity of the restraint on transfer does not affect the validity of the trust.
If the settlor is the beneficiary of a trust created by the settlor and the trust instrument provides that the trustee shall pay income or principal or both for the education or support of the beneficiary or gives the trustee discretion to determine the amount of income or principal or both to be paid to or for the benefit of the settlor, a transferee or creditor of the settlor may reach the maximum amount that the trustee could pay to or for
the benefit of the settlor under the trust instrument, not exceeding the amount of the settlor’s proportionate contribution to the trust. [California Probate Code 15304]
The California Supreme Court has held that to the extent that the settlor of a trust is also a beneficiary, creditors can reach the property held by the trust:
It is against public policy to permit a man to tie up his property in such a way that he can enjoy it but prevent his creditors from reaching it, and where the settlor makes himself a beneficiary of a trust any restraints in the instrument on the involuntary alienation of his interest are invalid and ineffective. Since [the settlor] was the sole beneficiary, all the property in the trust is subject to the claims of his creditors. [Nelson v. Cal. Trust Co., 33 Cal.2d 501, 501-02 (1949) (emphasis added)]
These principles have been more recently reaffirmed in a decision of the Ninth Circuit Court of Appeals:
[U]nder California law, a settlor of a spendthrift trust cannot also act as beneficiary of that trust (i.e., California law prohibits "self-settled" trusts). See Cal. Prob.Code § 15304(a) (West 1987). California law voids self-settled trusts to prevent individuals from placing their property beyond the reach of their creditors while at the same time still reaping the bounties of such property. See Nelson v. California Trust Co., 33 Cal.2d 501, 202 P.2d 1021,
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1021 (Cal. 1949). [In re Moses, 167 F.3d 470, 473 (9th Cir.
1999)]
In addition, the MSJ cites authority that if beneficiaries exercise
"excessive" control over a trust then under California law they cannot "shield that trust with an anti-alienation provision lacking true substance." In re Moses, 167 F.3d 470, 473 (9th Cir. 1999) (citation omitted) (emphasis added). See also In re Cutter, 398 B.R. 6, 22 (9th Cir. BAP 2008). MSJ (adv. dkt. 14, p.10:1-14).
The debtors argue that their situation is different from that in Cutter because "the Debtor in Cutter could potentially use all the Trust's principal and income to maintain his standard of living, without limitation" whereas "[t] here is no such provision" in the debtors' trusts. Dkt. 22, p.3:22-26 (italics added to case name). That distinction of Cutter (and the other authorities cited above) is unpersuasive.
The MSJ points to the following facts in support of its argument that (i) the debtors are also beneficiaries and (ii) the anti-alienation provisions of the trust lack "true substance." The debtor/defendants do not raise any genuine contrary issues of fact.
The debtors deducted mortgage interest and real estate taxes on their 2015 tax returns. See dkt. 18, p.4:5-9 (and evidence cited therein).
During the "initial period" of the trusts (the earlier of the grantors' deaths or 16 years) the debtors can continue to live in the property rent-free. See Dkt. 18, p.4:10-15 (and evidence cited therein).
During that same period, any net income or excess cash is distributed to the debtors. See Dkt. 18, p.4:16-21 (and evidence cited therein).
The debtors can manage the property as "absolute owners."
See Dkt. 18, p.4:22-28 (and evidence cited therein).
The debtors can loan money to themselves and/or use the property to secure loans to themselves. See Dkt. 18, p.5:2-7 (and evidence cited therein).
During their lifetime, the debtors can make discretionary distributions to their children, and upon their deaths the trust assets are to be distributed to their children. See Dkt. 18, p.5:8-12 (and evidence cited therein).
Based on the foregoing, it appears that the debtors are indeed
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beneficiaries of the trusts to a large extent, and moreover the anti-alienation provisions of the trust lack "true substance" as that term has been used in the cited authorities. Accordingly, the tentative ruling is to grant the MSJ on the second claim for relief.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20). The parties should be prepared to address whether there are any non- mooted matters left to resolve in this adversary proceeding, if this Court is not persuaded to depart from the foregoing tentative ruling on the MSJ.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/20/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/13/18:
Continue this status conference to be concurrent with the hearing on the pending summary judgment motion, which is presently scheduled for 3/20/18 at 11:00 a.m. Appearances are not required on 2/13/18.
This court has reviewed the parties' late-filed joint status report (adv. dkt. 10, 11) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority. Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (at the hearing on 12/5/17). See also adv. dkt. 10, 11.
Deadlines: This adversary proceeding has been pending since 9/26/17. The applicable deadlines are reflected in this court's orders (adv. dkt. 7, 20).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/5/17:
Appearances required. The court has reviewed the parties' joint status report (dkt. 5) and the other filed documents and records in this adversary proceeding.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
This court recognizes that, at least at this stage, the attorney who filed the answer (dkt. 4) for both trustees of the trust has also executed the Status Report (dkt. 5) on behalf of one of the defendant trustees (the debtor/defendant) asserting that neither of them can consent to this Bankruptcy Court entering a final judgment because third party beneficiaries of the trust allegedly have a right to have their rights litigated "outside of this venue." Counsel for the answering defendants should be prepared (a) to
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explain whether this is a Stern objection or something else and (b) whether both answering defendants or only one of them takes this position, and if the former, why he did not execute the status report on behalf of both of them.
Counsel for the plaintiff should be prepared to address whether the plaintiff contends that there are no additional parties who need to be joined, and why.
Mediation. The plaintiff suggests in the Status Report (adv. dkt. 5) that mediation, if any, should not be ordered before dispositive motion(s) are heard, which the plaintiff anticipates will be by 3/1/18. The tentative ruling is to revisit the issue of mediation after that date.
Deadlines: This adversary proceeding has been pending since 9/26/17. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to serve and lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 3/1/18 Expert(s) - deadline for reports: 2/20/18
Expert(s) - discovery cutoff (if different from above): 3/1/18 Dispositive motions to be heard no later than: 3/13/18 Joint Status Report: 1/30/18
Continued status conference: 2/13/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 4/10/18 Pretrial conference: 4/17/18 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 4/19/18 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 4/23/18 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
1:00 PM
Docket 16
- NONE LISTED -
Debtor(s):
MK Apparel,Inc Represented By Young K Chang
1:00 PM
Docket 49
Please see the tentative ruling for the status conference (calendar no. 3, 12/11/18 at 1:00 p.m.).
Debtor(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
1:00 PM
Docket 14
Tentative Ruling for 12/11/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
MORs (dkt. 51, 52, 50 for Aug., Sept. & Oct.)
(i) The Payroll Account continues to show a negative balance. How is that sustainable? (ii) The amended August MOR provides for payments to insider Savita Viradia. Why was there no notice of insider compensation filed and served for this person, and what consequences should follow? (iii) The Tax Account shows no activity, and the Tax Liabilities section is blank. Is Debtor paying and/or reserving for all employment, sales, business, income, and other taxes?
Motion to employ (dkt. 49) Grant.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/2/18.
Bar date: 12/11/18 (order, dkt. 35).
Plan/Disclosure Statement*: TBD.
Continued status conference: The tentative ruling is to continue this status conference to 1/15/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
1:00 PM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
MORs (dkt. 44, 45)
MOR1 (for August, 2018) shows an ending balance of negative
$4,549.03. MOR2 (for September 2018) shows an ending balance of negative $4,074.81. Both MORs also show negative postpetition accounts receivable. What does that mean?
Both MORs were also filed late. They were due middle of the month following the reporting period, and this Court's adopted tentative ruling for 10/9/18 directed that the defective August MOR be cured by 10/15/18 but it and the September MOR were not filed until 10/31/18.
Are the (untimely) MORs inaccurate? How can parties in interest and this Court rely on them for current information? If they're accurate, they appear to show losses, or at least an inability to generate profits that would be needed to reorganization.
In view of all the foregoing, should this case be converted or dismissed?
Insider compensation
Debtor's notices of insider compensation (dkt. 46, 47) were not served until 10/24/18, even though this Court's adopted tentative ruling for 10/9/18 directed service no later than 10/12/18. Why?
Meanwhile, although Debtor's principal Neel Viradia declares under penalty of perjury that no unauthorized insider compensation has been paid (dkt. 45, p.16, answer #2), the breakdown of payroll in the MORs apparently shows otherwise (e.g., dkt. 45, p.5, lines 1-2). The form itself states (e.g., dkt. 47, p.2, bottom of page): "[T]his notice ... must be filed and served fifteen
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days before any pay out of compensation ...." What consequences should follow from Debtor's apparent violation of that limitation?
Employment (dkt. 32, superseded by amended application, dkt. 42)
The amended application does not specify whether the $10,000 fee already paid by Batuk Viradia (and the filing fee), or the $2,000 he has committed to pay, are loans to Debtor, or gifts, or equity investments, or something else. Nor has he filed a declaration confirming that he understands that proposed counsel's sole loyalty must be to Debtor (not to Mr. Viradia), and that has been informed that there might be conflicts of interest and he may wish to seek separate counsel (e.g., conflicts could exist if Mr. Viradia received any preferential payments or other avoidable transfers, or if Mr. Viradia would prefer that Debtor take a course of action that is not in the best interests of creditors).
More generally, although payment of a retainer by a third party is not outright prohibited, it is fraught with ethical concerns. See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena
Corp., 63 F.3d 877 (9th Cir. 1995).
The tentative ruling is that, if this case is not dismissed or converted, the employment application must be continued to the date of the continued status conference (set forth below) with a deadline of 11/13/18 for Debtor to file Mr. Viradia's declaration, with a copy of this tentative ruling attached as an exhibit, addressing the issues described above.
Cash collateral. If this case is not dismissed or converted, the tentative ruling is to authorize the use of cash collateral on a final basis, on the same terms as the interim authorization (dkt. 37).
Deadlines/dates. This case was filed on 8/2/18.
Bar date: 12/11/18 (order, dkt. 35). Although the order was not timely served (see dkt. 41), the tentative ruling is that the confusion of setting yet another bar date would outweigh the benefit, and that this Court can address any prejudice from shortened notice when and if anyone files a late claim and seeks to have the claim treated as timely.
Plan/Disclosure Statement*: TBD.
Continued status conference: If this case is not dismissed or converted, the tentative ruling is to continue this status
1:00 PM
conference to 12/11/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
Revised Tentative Ruling for 10/9/18:
Appearances required.
Current issues.
Cash collateral. The tentative ruling is to authorize the use of cash collateral as set forth in the tentative ruling for calendar no. 6 (10/9/18 at 1:00 p.m.).
Insider compensation. Local Bankruptcy Rule ("LBR") 2014-1(a) requires a notice and opportunity to object before any insider compensation is paid. But no such notice has been filed, and Debtor's Monthly Operating Report ("MOR") for the month ending 8/31/18 reflects payments to each of two insiders. Dkt. 34, at PDF p.8. The tentative ruling is to direct Debtor to serve the notice using the local form no later than 10/12/18.
Bar date. On 9/5/18 this Court entered its "Order Setting Bar Date: November 9, 2018; and Directing Service by Debtor." Dkt. 24. The debtor failed to serve that order. Why? The tentative ruling is to issue an amended order setting a bar date as set forth below.
MOR (dkt. 34). The MOR appears to be incomplete. For example, it refers to multiple accounts but appears to provide only a combined report; many of the entries are vague or have no description; and page one includes a reference to "Non DIP personal checking (see attached letter)" but no letter or any other explanation is attached. The tentative ruling is to set a deadline of 10/15/18 to file an amended MOR correcting these and any other deficiencies.
Employment (dkt. 25). As highlighted by the objection of the United States Trustee ("UST") (dkt. 28), the parties should be prepared to address
(a) the proposed $12,000 flat fee under 11 U.S.C. 328 and (b) the source of the "loan" for $10,000 of that fee (dkt. 25, p.8) and the source of the remaining $2,000 plus the filing fee.
Deadlines/dates. This case was filed on 8/2/18.
Bar date: See above. In view of Debtor's failure to serve the order
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(dkt.24), the tentative ruling is to issue an amended order setting a bar date of 12/28/18 and directing the debtor to serve that order no later than 10/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD.
Continued status conference: 11/6/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 9/4/18
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 8/2/18.
Bar date: 10/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 11/1/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status
1:00 PM
conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
1:00 PM
Docket 338
Grant the application (dkt. 338), as supplemented (dkt. 366), for an aggregate of $255,002.00 in fees and $29,00.95 in expenses, for a total of $284,002.95. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
1:00 PM
Docket 337
Grant the application (dkt. 337), as modified by the errata (dkt. 357), for an aggregate of $163,288.91 in fees and $4,186.88 in expenses. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
1:00 PM
Docket 336
Revised Tentative Ruling for 12/11/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The tentative ruling has been revised because the Court inadvertently ommitted a ruling on the previously granted interim fees. The tentative ruling is to grant the application (dkt. 336) for an aggregate of $408,995.50 in fees and $12,889.40 in expenses. Debtor is hereby authorized to pay the approved fees and costs.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/11/18:
Grant the application (dkt. 336) for an aggregate of $312,860.50 in fees and
$9,496.71 in expenses. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within
1:00 PM
7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
1:00 PM
Docket 7
Tentative Ruling for 12/11/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Wells Fargo. What progress has been made in negotiation with secured creditor Wells Fargo Bank, N.A. (Class 2B in the debtor's draft Plan, dkt. 47)?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement (dkt. 46, 47)*: See above.
Continued status conference: 1/15/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Appearances required but telephonic appearances are encouraged if
1:00 PM
advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Wells Fargo. What progress has been made in negotiation with secured creditor Wells Fargo Bank, N.A. (Class 2B in the debtor's draft Plan, dkt. 47)?
BONY/Mellon. The tentative ruling is to approve the Bank of New York Mellon Stipulation (dkt. 52).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement (dkt. 46, 47)*: See above.
Continued status conference: 12/11/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/16/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to discuss what progress has been made in negotiation with secured creditor Wells Fargo Bank, N.A. (Class 2B in the debtor's draft Plan, dkt. 47). This Court is aware of the motion to approve the stipulation with the holder of Class 2A claims, Bank of New York Mellon (the "Mellon Stip," dkt. 52). The tentative ruling is to move the Mellon Stip hearing from 11:00 a.m. to 1:00 p.m., and continue this status conference to the same
1:00 PM
date and time, with no written Status Report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Appearances required.
Current issues. This Court has reviewed the debtor's draft plan (dkt. 47) and disclosure statement (dkt. 46) and this Court has no issues to raise sua sponte. Has the debtor had any negotiations with secured creditors? Is it more appropriate to allow additional time for such negotiations, or to authorize the debtor to mail a voting package to all parties in interest and set a combined hearing on final approval of the disclosure statement and confirmation of the plan for the same time and date as the continued status conference set forth below?
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement (dkt. 46, 47)*: See above.
Continued status conference: 10/16/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Tentative Ruling for 8/7/18:
Continue as set forth below. Appearances are not required on 8/7/18.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (dkt. 23). Timely served (dkt. 41).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 9/4/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. The debtor's proofs of service continue to be defective. Elizabeth Cruz declares that she has served the "PROOF OF SERVICE" itself, not the underlying orders. See dkt. 20 at PDF p.2 and dkt. 31 at PDF p.2.
At the hearing counsel is directed to explain why the proofs of service are defective, and what steps will be taken to correct this issue so that it no longer occurs. The deadline is 6/19/18 to file further amended proofs of service of both orders (the order setting principal status conference etc. at dkt. 6, and the bar date order at dkt. 23).
1:00 PM
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). See above.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/7/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/1/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 13). Counsel must address:
Income as of petition date or current? The debtor has filed an amended bankruptcy Schedule I (dkt. 30). Is that actually intended to be a decaration of postpetition income, or a correction of the debtor's income as of the petition date?
Amended budget motion? Should an amended budget motion needs to be filed and served, or is such notice unnecessary and should the budget be deemed amended, in view of what appears to be an increase of approximately $168 in the debtor's monthly income (compare dkt. 13 at PDF p.8, debtor's personal income of $2,800, with dkt. 30, line 7, debtor's personal income of $2,968)?
Cash collateral motion (dkt. 12). Grant on a final basis, on the
1:00 PM
same terms as the interim order (dkt.24).
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (Order, dkt. 23). Note: Timely served? Per the proof of service (dkt. 26, the "POS") the debtor served the POS itself on creditors. Presumably the debtor means that she served the order on creditors (not the POS), but the debtor is directed to file an amended POS saying so, no later than 5/3/18.
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Failure to serve order. This Court's order setting this status conference (dkt. 6) directed the debtor to serve a copy of that order on all parties in interest no later than 14 days prior to this status conference. No proof of service appears on the docket. The tentative ruling is to set a deadline of 4/11/18 for the debtor to effect such service, with a caution to counsel that in future such failure may result in sanctions.
Budget motion (dkt. 13). Grant on an interim basis, with a final
1:00 PM
hearing on the same date at the continued status conference set forth below.
Deadlines/dates. This case was filed on 3/6/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/24/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Abelino Mariscal Gonzalez Represented By Onyinye N Anyama
1:00 PM
Docket 9
Tentative Ruling for 12/11/18:
Continue to the date and time set forth below. Appearances are not required on 12/11/18.
Current issues
The Court has no issues to raise sua sponte.
Dates/Deadlines.
Bar date: 6/15/18 (timely served, dkt. 26, 32)
Plan/Disclosure Statement*: file by 4/1/19 (see dkt. 86) using the forms required by Judge Bason.
Continued status conference: 4/30/19 at 1:00 p.m. Brief status report due 4/23/19.
*Warning: special procedures apply (see order setting principal status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Continue to the date and time set forth below. Appearances are not required on 9/18/18.
Current issues.
1:00 PM
(a) Motion for relief from automatic stay (dkt. 41). Deny without
prejudice, for the reasons stated in the debtor's response (dkt. 48) and based on the representations in the debtor's status report (dkt. 60). Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Dates/Deadlines.
Bar date: 6/15/18 (timely served, dkt. 26, 32)
Plan/Disclosure Statement*: file by 12/4/18 (see dkt. 55, p.4:25) using the forms required by Judge Bason.
Continued status conference: 12/11/18 at 1:00 p.m. Brief status report due 12/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Continue to the date and time set forth below. Appearances are not required on 7/17/18.
Current issues. This Cout has reviewed debtor's status report (dkt. 55) and other relevant pleadings. This Court does not have any issues to raise sua sponte.
Dates/Deadlines.
Bar date: 6/15/18 (timely served, dkt. 26, 32)
Plan/Disclosure Statement*: TBD. This Court is aware that debtor has requested a somewhat distant deadline (dkt. 55, p. 4). This Court may or may not be persuaded to grant that deadline at the continued status conference.
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Continued status conference: 9/18/18 at 1:00 p.m. Brief status
report due 9/4/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/22/18:
Appearances are not required on 5/22/18.
Current issues.
This court does not have any issues to raise sua sponte.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (timely served, dkt. 26, 32).
Plan/Disclosure Statement*: This court will discuss setting a deadline for the filing of a draft plan/disclosure statement at the next status conference.
Continued status conference: 7/17/18 at 1:00 p.m. Brief status report due 7/3/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/1/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget Motion (dkt. 21). This Court has reviewed Debtor's Supplemental Declaration in Support of the Budget Motion (dkt. 34). Although that declaration addresses many of the concerns raised by this Court and by Strategic Acquisitions, Inc. (dkt. 23), the debtor has failed to provide historical monthly profit and loss statements from the period from 1/1/18 through 3/31/18 as required by this Court's order (dkt. 27, para. 5.a.). The parties should be prepared to address what remedy this Court should impose.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (timely served, dkt. 26, 32).
Plan/Disclosure Statement*: In view of the debtor's declaration about her current and future projected income, the tentative ruling is to vacate the prior deadline to file these documents, and set a new deadline at a future status conference, with the caveat that if the debtor fails to show sufficient diligence in obtaining employment and/or if the estate suffers any substantial losses then this Court might have to dismiss or convert this case.
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/10/18:
Appearances required by counsel for the debtor and by the debtor herself.
Current issues. This Court has reviewed the debtor's status report (dkt. 19), the response (dkt. 23) filed by creditor Strategic Acquisitions, Inc. ("Strategic"), and the other filed documents and records in this case.
Prior failed case. The debtor's husband's prior case (no. 17-
bk-19071-NB) was a chapter 13 case that was dismissed on 10/13/17 with a 180-day bar to re-filing for failure to make plan payments or appear at the meeting of creditors (11 U.S.C. 341(a)).
Budget Motion (dkt. 21). First, as Strategic points out, the debtor's bankruptcy Schedule I, line 8a, lists $6,220/mo. of net income from "rental property and from operating a business, profession, or farm" but fails to follow the instructions to "[a]ttach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total net monthly income." In addition, as Strategic points out, the debtor may be failing to account for the payment of real property taxes and perhaps also income taxes, and therefore it is not at all clear how the debtor will be able to fund any plan of reorganization.
The tentative ruling is to set a deadline of 4/17/18 for the debtor to file declaration(s) (i) attaching the statement(s) required by the line 8a instructions, (ii) providing complete explanations of any other sources of income (e.g., how long does the debtor anticipate continuing to receive disability payments? does the debtor ancticipate returning to employment, and if so, when?), (iii) explaining whether the debtor is accounting for real estate taxes and income taxes, (iv) explaining how the debtor anticipates generating sufficient income to fund a plan of reorganization, and (v) attaching historical monthly accounts for the period of one year prepetition through 3/31/18.
Second, bankruptcy Schedule J (attached to the budget motion), lines 17c and 17d, list payments to Strategic of $1,750/mo. and to Ropers Majeski of $500/mo. The tentative ruling is to treat those payments as adequate protection payments on account of claims that appear to be secured claims, conditioned on return of such payments in the event that such security interests or claims are avoided or otherwise disallowed.
Third, notice of the motion and the deadline for objections is
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inadequate. The proof of service fails to attach a service list of creditors, and the debtor checked the box directing creditors to file any oppositions within 14 days' from the date of the proof of service (3/27/18), which would be the date of this hearing. Nevertheless, despite the lack of adequate service or notice, the tentative ruling is that on the present record it appears that it would be more prejudicial to creditors to prevent the debtors from making their proposed expenditures than to permit those expenditures, so the tentative ruling is to grant the budget motion on an interim basis, subject to any objections at a continued hearing simultaneous with the continued status conference date set forth below. This court has selected a continued hearing date that contemplates shortened notice (per Rule 9006, Fed. R. Bankr. P.), but that date is conditioned upon the debtor serving the motion on the entire creditor matrix the day after the current hearing date.
Deadlines/dates. This case was filed on 3/13/18.
Bar date: 6/15/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: File by 6/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time). This Court is aware that the debtor has requested a much later deadline (dkt. 19, p. 5), but this Court is not aware of any reason why so much time is needed. The debtor should be negotiating with secured creditors and other key constituencies already.
Continued status conference: 5/1/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Peta Elizabeth Gorshel Represented By Michael Jay Berger
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Docket 7
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron Kevin Tang
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Docket 5
Tentative Ruling for 12/11/18:
Appearances required.
Current issues.
Plan (dkt. 64, the "Plan") and disclosure statement (dkt. 63, the
"D/S")
It appears that counsel for Debtor has manually altered the
spreadsheets, which defeats the purpose of having automatic (reliable) calculations in the spreadsheets. In addition, it appears that the Plan periods in Ex.A are "1" month and 13 months later (month "14"), whereas on Ex.C Period A is 3 months, Period B is 1 month, and Period C is 6 months, which does not match. In addition, the Effective Date (e.g., on Ex.A & Ex. C) should be revised to a date that is at least two weeks after the combined hearing on the plan and D/S set forth below.
Subject to correction of these issues, the tentative ruling is to conditionally approve the disclosure statement and authorize service of the voting package, all as set forth below.
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement (dkt. 64,63)*: 12/18/18 deadline (i) to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and (ii) to lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference. The proposed order should be moditied so that the voting packgage includes Mr. Starflinger's declaration
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(dkt. 65).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at
least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 3/12/19 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Appearances required.
Current issues. This Court has reviewed Mr. Starflinger's declaration (dkt. 62) and will address at the Status Conference Debtor's first amended plan (dkt. 61) and first amended disclosure statement (dkt. 60).
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement*: This Court anticipates authorizing service of a voting package and setting related deadlines and dates, including a combined hearing on final approval of the disclosure statement and confirmation of the plan.
Continued status conference: 12/4/18 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 10/9/18:
Appearances required.
Current issues. This Court has reviewed the debtor's status report (dkt. 57) will address at the Status Conference Debtor's proposed Plan (dkt. 55) and disclosure statement (dkt. 54).
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement*: This Court anticipates authorizing service of a voting package and setting related deadlines and dates, including a combined hearing on final approval of the disclosure statement and confirmation of the plan.
Continued status conference: 11/27/18 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 8/7/18:
Continue to 10/9/18 at 1:00 p.m., per the debtor's request (Status Report, dkt. 51). Appearances are not required on 8/7/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Continue to 8/7/18 at 1:00 p.m. Appearances are not required on 6/26/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/21/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
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Continued status conference: 6/26/18 at 1:00 p.m., to be concurrent with other hearings in this case. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
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fr. 11/27/18
Docket 57
Debtor(s):
Ricardo Edmundo Lengua Represented By John A Harbin
Joint Debtor(s):
Pamela Lorraine Lengua Represented By John A Harbin
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Docket 6
Tentative Ruling for 12/11/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Motion to Use Cash Collateral (dkt. 57). Withdrawn (dkt. 69).
Proposed refinance. The refinance motion (dkt. 68) was not filed until 12/3/18 - almost half a year after this case was filed: why was it not filed sooner? The motion fails to include the mandatory notice of hearing, objection deadlines, etc. The motion contemplates that the sale will close in January of 2019, but it lists a hearing date of 1/29/19 at 1:00 p.m., which would give almost no leeway to close in January after the hearing: why was the hearing self-calendared so far out? The motion admits that the payoff amounts will increase by then: will the refinance provide sufficient funds to pay all liens in full? The escrow statement contemplates a payment of
$30,000 to Debtors' counsel: any such payment must be held in a trust account unless and until approved by this Court. The tentative ruling is to continue this status conference for one week to see if these issues have been corrected, with a warning to counsel for Debtors that there likely will be consequences to his continued disregard for the rules and procedures of this Court, including a reduction in fees.
Dates/Deadlines. This case was filed on 5/28/18.
Bar date: 9/4/18 (timely served, dkt. 23, 25)
Plan/Disclosure Statement*: N/A
Continued status conference: 12/18/18 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/27/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Motion to Use Cash Collateral. Grant on an interim basis, as set forth in the tentative ruling in calendar no. 11 (11/27/18 at 1:00 p.m.).
Proposed refinance. At the status conference on 10/16/18, Debtors' counsel anticipated filing a motion for a refinance very shortly thereafter, and the tentative ruling for that date set forth various items that Debtor would need to address. No such motion is on the docket. The refinance motion was supposed to supersede the proposed plan and dislosure statement, and as noted in the tentative ruling for 10/16/18 those documents are incomplete and confused. See also dkt. 65 (objection of Ditech Fin. LLC). Are debtors and their counsel properly prosecuting this case?
The tentative ruling is to continue this Status Conference with a warning to Debtors and their counsel that if they do not prosecute this case then it likely will be dismissed with a bar against being a debtor again, or converted to chapter 7, or this Court may impose other remedies.
Dates/Deadlines. This case was filed on 5/28/18.
Bar date: 9/4/18 (timely served, dkt. 23, 25)
Plan/Disclosure Statement*: N/A
Continued status conference: 1/15/19 at 1:00 p.m. No written status report required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/16/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This Cout has reviewed debtor's status report (dkt. 50) and other relevant pleadings.
Plan (dkt. 47) and Disclosure Statement (dkt. 48). These documents are incomplete and confused. But the tentative ruling is that there is no need to proceed with these documents if Debtors are going to proceed with a proper motion to refinance and pay all creditors in full (as stated in their status report).
Proposed refinance. The claims register lists total claims fo
$419,929.77 as of the petition date (of which $366,270.15 are listed as secured and $150.29 as priority). The proposed refinance would generate loan proceeds of $463,000. This appears to be sufficient to pay all claims, probably including postpetition interest, although perhaps not including 100% of asserted administrative expenses. Counsel for the debtor should be prepared to address (i) the form of motion he intends to file, (ii) whether that motion will seek authority to pay unsecured claims, and (iii) whether unsecured claims will be paid out of escrow or by some other means and, if the latter, who will hold the net proceeds after payment of secured claims.
Dates/Deadlines. This case was filed on 5/28/18.
Bar date: 9/4/18 (timely served, dkt. 23, 25)
Plan/Disclosure Statement*: N/A
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Continued status conference: 11/27/18 at 1:00 p.m. No written
status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Continue to the date and time set forth below. Appearances are not required on 8/14/18.
Current issues. This Cout has reviewed debtor's status report (dkt. 38) and other relevant pleadings.
This Court does not have any issues to raise sua sponte.
Dates/Deadlines. This case was filed on 5/28/18.
Bar date: 9/4/18 (timely served, dkt. 23, 25)
Plan/Disclosure Statement*: file by 9/25/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the next status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 10/16/18 at 1:00 p.m. Brief status report due 10/2/18.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/26/18:
Appearances required by counsel for the debtor and by the debtor themselves.
Current issues. This Court has reviewed the debtors' status report (dkt. 14), and the other filed documents and records in this case.
May MOR (dkt. 18). The MOR purports to cover the period from 5/28/18 (the petition date) to 5/31/18, but is essentially blank, including the section for disclosure of existing insurance coverage (dkt. 18, pdf p. 5). Debtors should be prepared to address (i) whether they have insurance coverage on their residential real property (and any other asset requiring insurance); and, if they do (ii) whether they read the MOR and understood it prior to signing.
Case Status Report (dkt. 14).
Budget Motion. The status report says that a budget motion is not required by Judge Bason's procedures (dkt. 14, pdf p. 3), but that is not correct. See Judge Bason's Procedures, Section VII.F ("Judge Bason requires the use of local forms F 2081-2.2.MOTION.BUDGET and F
2081-2.2.ORDER.BUDGET"). Did counsel actually review the posted procedures? The tentative ruling is to set a deadline of 6/28/18 to file and serve a budget motion.
Consumers' confidential information. The status report states that the debtors do not have possession, custody, or control of consumers' confidential information (dkt. 14, pdf p. 10), but this Court questions whether that is accurate. What about customer lists from Hey Baby Sales, Inc.? Do the debtors claim any rights to those lists? (e.g. if the case were converted to a chapter 7 case, a sale of the debtors' interest in the company took place, and the buyer wanted the customer lists, would the
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debtors agree they could not retain or use the lists because the lists are owned by the company?).
The debtors should be prepared to address what steps they will take to protect confidential consumer information, and whether a consumer privacy ombudsman is required (11 U.S.C. 332).
Deadlines/dates. This case was filed on 5/28/18.
Bar date: 9/4/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 9/25/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 8/14/18 at 1:00 p.m., brief status report due 7/31/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricardo Edmundo Lengua Represented By John A Harbin
Joint Debtor(s):
Pamela Lorraine Lengua Represented By John A Harbin
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8/15/17, 11/14/17, 02/13/18, 7/10/18, 9/18/18
Docket 6
Tentative Ruling for 12/11/18 (same as for 9/18/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The docket does not reflect any activity. What is the status of this case, and when will it be ready for a final decree?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 7/10/18:
Continue as set forth below. Appearances are not required on 7/10/18.
Current Issues. This Court has reviewed debtor's status report (dkt. 154, 156) and other relevant pleadings in this case. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. Continue to 9/18/18 at 1:00 p.m. (no written status report required; and will go off calendar if a final decree has been issued before that time).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 2/13/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference. The tentative ruling is to set a continued status conference for 7/10/18 at 1:00 p.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
Continue to 2/13/18 at 1:00 p.m. in view of the debtor's post-confirmation status report (dkt. 142). Appearances are not required on 11/14/17.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 8/15/17:
Appearances required. The debtor's counsel should be prepared to address the issues set forth below.
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Proposed order: If this court is persuaded to adopt this tentative ruling, then counsel for the debtor is directed to serve and lodge proposed orders (a) approving the disclosure statement (dkt. 101) on a final basis and (b) confirming the plan (dkt. 102), all as amended by the stipulation with class 2A (dkt. 127, 128). Those preposed orders must be lodged via LOU within 7 days after the hearing date.
Ballot Summary. The debtor's ballot summary (dkt. 131) appears to be inaccurate and internally inconsistent. Although the ballots and stipulation attached to the ballot summary show acceptance by 100% in both dollar amount and number of the claims actually voted or deemed to have been voted in classes 2A, 2B and 4A, and no vote by Class 2C, the ballot summary makes assertions that are not consistent with those ballots, namely:
Cramdown: The ballot summary asserts that the debtor is not requesting cramdown (dkt. 131, item 3), even though the lack of an affirmative vote in class 2C means that the debtor does not satisfy 11 U.S.C. 1129(a)(8) and therefore must seek cramdown under 11 U.S.C. 1129(b);
Accepting classes: The ballot summary asserts that only class 4A has voted to accept the plan (dkt. 131, item 6), even though classes 2A and 2B have also accepted the plan; and
Page 2 of the Ballot Summary: The chart on page 2 of the ballot summary (dkt. 131, p.2, top line of chart) fails to show that Class 2A has accepted the plan by 100% in number of claims deemed to have been voted (not just 100% in amount). In addition, it would have been helpful if the ballot summary's "Comments" following that chart had explained that (i) Portfolio Recovery Associates is Class 2C (even though it is listed as LA County Tax Collector in the Plan), (ii) U.S. Bank is Class 2A (even though it is listed as Wells Fargo in the Plan), and (iii) Class 2A is deemed to have voted in favor of the plan under its court-approved stipulation, even though it did not actually cast a ballot. (If any of the foregoing is incorret then counsel for the debtor must correct those issues at the hearing.)
Status report
The debtor's status report (dkt. 130) misleadingly asserts that this court's order (dkt. 106) previously approved the disclosure statement (dkt. 101), whereas in fact this court only granted preliminary approval for purposes of this combined hearing on whether to approve the disclosure
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statement (dkt. 101) and confirm the plan (dkt. 102).
Confirmation. Notwithstanding the foregoing, it appears that the debtor's disclosure statement (dkt. 101) should be approved, and that the chapter 11 plan (dkt. 102), as amended by the debtor's stipulation with the holder of the class 2A claim (dkt. 127, 128), has met the requirements for confirmation under 11 U.S.C. 1129(a) & (b).
Correction. This court notes that the tentative ruling for 6/20/17 (reproduced below) was in error in asserting that "[at] the status conference on 5/23/17 this court set a deadline of 6/6/17 to file an amended plan and disclosure statement." In fact, this court was persuaded at that status conference not to impose that deadline.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/20/17:
Continue to 8/8/17 at 1:00 p.m. (without the need for any written status report), but impose sanctions of $200 on counsel for the debtor, for the reasons set forth below. Appearances are not required on 6/20/17.
At the status conference on 5/23/17 this court set a deadline of 6/6/17 to file an amended plan and disclosure statement. On 6/15/17, after this court had already prepared a tentative ruling for this status conference, counsel for the debtor filed a stipulation (dkt. 117) and lodged a proposed order for yet another continuance of the confirmation hearing. At no point did counsel telephone chambers to suggest that counsel expected or was attempting to arrange for such a continuance. Moreover, as set forth in the tentative rulings reproduced below, this case has a long history of missed deadlines, last minute filings, and deficient documents.
This court recognizes that to a large extent counsel cannot control delays by a debtor and debtor in possession, and not infrequently a debtor is simply incapable of meeting all of the debtor's obligations. Nevertheless, this court has noted that counsel of record in this case has a pattern, in this and other cases (e.g., In re Barragan, 2:15-bk-29156-NB), of filing late and
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inadequate documents, and that pattern is not matched by the vast majority of other counsel who appear before this court. All of that strongly suggests that counsel bears some responsibility for those deficiencies, and that imposes substantial burdens on this court, the U.S. Trustee, and any other parties in interest who may be monitoring or involved in such bankruptcy cases. The tentative ruling is that this warrants sanctions under this court's inherent powers and 11 U.S.C. 105. Counsel is also cautioned that this court anticipates issuing similar or increased sanctions if this pattern continues in other cases in future.
If you wish to dispute the above tentative ruling, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 5/23/17:
Appearances required by counsel for the debtor, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The ballot summary was due 5/16/17 but was not filed until 5/22/17 at 4:12 p.m. In addition, it is internally inconsistent. What remedies are appropriate?
The plan (dkt. 102) has not been accepted by any class. This is the debtor's second bankruptcy case, and it has been pending for over a year. The debtor's lack of progress for that long a period of time suggests a willful delay. Should this court dismiss or convert this case? Should this court impose a bar against being a debtor in bankruptcy for the third time in a row?
Deadlines/dates. This case was filed on 4/20/16. If this case is not dismissed or converted, the tentative ruling is to hold a continued status conference on 6/20/17 at 1:00 p.m. with a deadline of 6/6/17 to file (but NOT serve) yet another amended plan and disclosure statement.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/23/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 4/11/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
UST compliance and adequate protection payments. What is the status?
Plan (dkt. 101) and Disclosure Statement (dkt. 102). 4/14/17 deadline to lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: See above.
Continued status conference: 5/23/17 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/28/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
U.S. Trustee notice of non-compliance. Has the debtor cured the reporting delinquency noted by the U.S. Trustee regarding lack of insurance
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(dkt. 94)?
Adequate protection payments. At the hearing on 1/10/17 counsel for the debtor assured this court that the debtor had cured the postpetition delinquency in adequate protection payments. But the monthly operating report for January 2017 (dkt. 95, filed 2/7/17, at p.4) continues to list 4 missed payments for a total of $6,972 delinquency. What was the basis for counsel's misrepresentation to this court? Should this court require counsel and the debtor to testify on that issue, and on the prospects for future income, before this court can find that the plan is feasible (11 U.S.C. 1129(a)(11))? Should this misrepresentation have any other consequences?
Plan (dkt. 82) and Disclosure Statement (dkt. 81). The debtor's ballot summary was due to be filed no later than 2/21/17 (dkt. 89). Instead the debtor's counsel has filed a declaration (dkt. 96) asserting that a ballot in favor of the plan has been received by class "6b," even though no such class is listed in the plan (see dkt. 82, Ex.A), and requesting more time to receive ballots from classes 2a and 2b, even though the deadline for ballots has passed. The parties should be prepared to address how best to proceed in these circumstances.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement (dkt. 82, 81): See above.
Continued status conference: 4/11/17 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/28/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/10/17:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues.
Payments to secured creditor Wells Fargo. The debtor's November 2016 MOR reflects that the debtor has not made 4 monthly payments to secured creditor Wells Fargo. See dkt. 84, PDF p. 7. Is that accurate, or did the debtor intend to state that those payments were made?
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement (dkt. 82, 81): The tentative ruling is to set the following deadlines: 1/17/17 to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and to lodge Judge Bason's form of order authorizing service of the relevant documents and setting deadlines; and 2/28/17 at 1:00 p.m. for the combined hearing on approval of the Disclosure Statement and confirmation of the Plan (with the court to set typical deadlines for objections etc.).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 2/28/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/8/16:
Appearances required by counsel for the debtor, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues
Amended Chapter 11 Plan and Disclosure Statement (dkt. 74, 75). There are issues with these documents which this Bankruptcy Court will review orally at the hearing.
Monthly operating reports. The debtor's court approved budget (dkt. 19) and the budget attached to her amended chapter 11 disclosure statement (dkt. 74, PDF p. 13) show various typical monthly expenses such as transportation costs, utilities, and food. The expenses included in her budgets submitted to this court are either not reflected in her MORs for August and September 2016 (dkt. 65 and 73, respectively) or are reflected, but in much smaller amounts than budgeted. Is the debtor reporting all of her monthly expenses in her MORs? If not, why not?
Additionally, the MORs appear to reflect that the debtor is receiving less than her budgeted monthly income ($1,800/mo.) from her job as a real estate professional. In August 2016, the debtor reported receipts of $970.01; in September 2016, receipts of $1,000.
Based on the reporting in the debtor's two most recent MORs, this court is concerned that the debtor may not have sufficient disposable income with which to fund her proposed chapter 11 plan.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: Deadline of 12/6/16 to file (but NOT serve) an amended draft plan and disclosure statement if sufficient issues have been resolved to finalize those draft documents (see above).
Continued status conference: 1/10/17 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/13/16:
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Appearances required by counsel for the debtor, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Chapter 11 Plan and Disclosure Statement (dkt. 59, 58). There are numerous issues with these documents, which this Bankruptcy Court will review orally at the hearing.
Orders on budget and cash collateral motions. On July 19, 2016, this court held continued hearings on the debtor's motion for use of cash collateral (dkt. 18) and budget motion (dkt. 19). The motions were granted on a final basis, and the court's adopted tentative ruling directed the debtor to lodge proposed orders on those motions within seven days of the hearing date. This court has reviewed the case docket and its pending lodged orders, and it appears no such orders have been lodged.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (timely served, dkt. 39)
Plan/Disclosure Statement: Deadline of 10/11/16 to file (but NOT serve) an amended draft plan and disclosure statement if sufficient issues have been resolved to finalize those draft documents (see above).
Continued status conference: 11/8/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/19/16:
Appearances are not required on 7/19/16.
Current issues.
Cash collateral motion (dkt. 18). Grant on a final basis, on the same terms set forth in this court's order granting interim use of cash
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collateral (dkt. 37).
Budget motion (dkt. 19). Grant on a final basis.
The debtor must lodge proposed orders on each of the foregoing motions within seven days.
Deadlines/dates. This case was filed on 4/20/16
Bar date: Bar date: 7/29/16 (timely served, dkt. 39).
Plan/Disclosure Statement*: file by 8/19/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Note: If the U.S. Trustee wishes to file initial comments on any draft Plan documents before the regular deadline, it should do so at least two weeks prior to the subsequent status conference (but, whether or not any comments are filed, all rights are reserved to object to the Disclosure Statement or Plan when deadline(s) for such objections are established).
Continued status conference: 9/13/16 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/31/16:
Appearances required by counsel for the debtor and by the debtor(s) themselves
Current issues. This Court has reviewed the debtor's status report (dkt. 23).
Prior failed case. The debtor's prior case (no. 2:14-bk-14065-NB) was a chapter 13 case that was dismissed because of plan infeasibility due to the objections by Wells Fargo, and claims by the IRS, FTB, and L.A. County Tax Collector.
Debtor's real property
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Inconsistent rental income amount. This Court notes that the debtor's amended schedule G reflects a monthly rental of $2,200 (dkt. 13, p.10), which was originally listed as $1,500 per month (dkt. 1, p.36). However, the debtor's original schedule I originally listed the debtor's net income from rental property as $2,400 (dkt. 1, p.39). The debtor's amended schedule I now lists net income from rental property as $2,200 (dkt. 13, p.12). Although the rental income now appears to be consistent at $2,200, and schedule G reflects the same lessee, Smark Lyles, is this the correct amount?
Schedule I. Part 8.a. requires that the debtor attach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income.
Motion to Value. The debtor's status report indicates that the debtor intends to file a motion to value the real property. When does the debtor anticipate filing the motion to value?
UST compliance. The United States Trustee has filed a motion to dismiss or convert (dkt. 24). Although the matter has been set for hearing on 6/21/16, the debtor should be prepared to address more generally, why this case in chapter 11 instead of chapter 13. It appears that the debtor is within the debt limits for chapter 13, and chapter 11 typically is far more expensive, so it seems doubtful that the debtor needs or can afford a chapter 11 case.
Deadlines/dates. This case was filed on 4/20/16.
Bar date: 7/29/16 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/19/16 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time). This Court is aware that the debtor has requested a much later deadline (dkt. 23, p.4) but this Court is not aware of any reason why so much time is needed. The debtor should be negotiating with secured creditors and other key constituencies already.
Continued status conference: 7/19/16 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Glynder Lucas Striggs Represented By Onyinye N Anyama
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11/6/18
Docket 1
Debtor(s):
Charles Elvin Lamay Represented By Onyinye N Anyama
Joint Debtor(s):
Silvana Marie LaMay Represented By Onyinye N Anyama
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Docket 0
Tentative Ruling for 12/11/18:
This Court has reviewed the debtor's filed status report (dkt. 1517) and has no issues to raise sua sponte. The tentative ruling is to continue this status conference to 3/12/19 at 2:00 p.m., with a brief status report due 2/26/19.
Appearances are not required on 12/11/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
This Court has reviewed the debtor's filed status report (dkt. 1511) and has no issues to raise sua sponte. The tentative ruling is to continue this status conference to 11/20/18 at 2:00 p.m., with a brief status report due 11/6/18. Appearances are not required on 7/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/17/18:
(a) Grant the motion to clarify issues regarding class 8 claims (dkt. 1489) as amended by the supplement (dkt. 1496), (b) issue an order substantially in the form attached as an exhibit to that supplement (the debtor is directed to lodge that proposed order within 7 days after this hearing), and (c) set a continued post-confirmation status conference for 7/17/18 at 2:00 p.m., with a brief status report due 7/6/18. Appearances are not required on 4/17/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
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Docket 380
- NONE LISTED -
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
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Docket 1
Tentative Ruling for 12/11/18:
Continue to as set forth below, to be concurrent with the hearing on the motion to approve compromise (see dkt. 52, 92, 94). Appearances are not required on 12/11/18.
Current issues
This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 7/30/18 and converted to chapter 7 on 10/10/18.
Bar date: 11/7/18 (see dkt. 47, 51, and tentative ruling for 10/9/18, reproduced below).
Plan/Disclosure Statement*: N/A.
Continued status conference: 1/8/19 at 2:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Appearances required.
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Current issues
Debtor's motion to approve compromise (dkt. 52). There is no tentative ruling but the parties should be prepared to address the responses by Allstar and the Chapter 7 Trustee (see dkt. 61, 75) and Debtor's reply (dkt. 81).
Deadlines/dates. This case was filed on 7/30/18 and converted to chapter 7 on 10/10/18.
Bar date: 11/7/18 (see dkt. 47, 51, and tentative ruling for 10/9/18, reproduced below).
Plan/Disclosure Statement: N/A.
Continued status conference: 12/4/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 10/9/18:
Appearances required. The tentative ruling is to convert this case to chapter 7 pursuant to 11 U.S.C. 1112(b), due to the apparent conflicts of interest of the debtor's principal, Mr. Brown, with the interests of creditors. See Motion by UST (dkt. 39), Joinder by Allstar Fin. Svcs., Inc. (dkt. 62). Although Debtor asserts (dkt. 58) that a number of issues identified by the UST have been addressed, the opposition does not adequately address the alleged conflicts of interest. In addition, the issues identified in this Court's tentative ruling for 10/9/18 (reproduced below) have not been adequately addressed. In addition, this Court's order (dkt. 47) directed Debtor not to serve a notice of bar date and instead to serve a copy of that order itself, no later than 9/7/18, but Debtor disregarded that order and served its own notice (dkt. 51) on 9/16/18.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 9/4/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Failure to serve order. This Court's status conference order (dkt. 9, para.5, bolded text) directed counsel for the debtor to serve all creditors with a copy of the order. Why was it not served?
Failure to comply with requirements for professionals. The debtor's status report (dkt. 45, p.4) states that neither the debtor's attorney nor any other professional intend to apply for employment because they do not intend to seek compensation during the case. That is not the test. They are required to apply for employment under 11 U.S.C. 327. In addition, the United States Trustee ("UST") has objected in its motion to dismiss (dkt. 39) that the person who claims to be acting as the debtor's bankruptcy attorney, Robert A. Brown, Esq., is also the debtor's CEO and General Counsel. The parties should be prepared to address the conflicts issues.
Failure to comply with Chapter 11 requirements. See the UST's motion to dismiss (dkt. 39).
Failure to comply with procedures for plan (dkt. 38) and disclosure statement (dkt. 37). As stated in this Court's status conferences order (dkt. 9), Judge Bason's posted procedures (available at www.cacb.uscourts.gov) establish procedures for any draft plan and disclosure statement. Counsel for the debtor has violated those procedures by mailing a copy of the drafts to creditors before this Court has approved such mailing.
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In addition, those documents omit any meaningful liquidation analysis
or disclosure of what could be paid to general unsecured creditors, instead opting for a flat 12% promised distribution (dkt. 38, at PDF pp.13-14). In addition, from the summary of assets and liabilities (dkt. 19) it appears that the debtor might have enough equity in property to pay far more than12%, depending on the total amount of unsecured claims.
Opaque "disclosures". The debtor's references to a sale of the "Marsh" property is not adequately explained. In addition, although the debtor's bankruptcy Schedule H (dkt. 1) asserts that there are no co-debtors, this Court questions whether that is so because business organizations typically have individual guarantors on any major debts.
Deadlines/dates. This case was filed on 7/30/18.
Bar date: 11/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement: TBD.
Continued status conference: 10/9/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Acquiplied Assets, B.T. Represented By Stephen L Burton
Trustee(s):
Howard M Ehrenberg, Ch 7 Trustee Represented By
Asa S Hami
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fr. 11/6/18
Docket 52
Debtor(s):
Acquiplied Assets, B.T. Represented By Stephen L Burton
Trustee(s):
Howard M Ehrenberg, Ch 7 Trustee Represented By
Asa S Hami
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fr. 11/14/17, 1/9/18, 1/23/18, 1/30/18, 02/13/18, 4/10/18, 5/8/18, 6/12/18, 6/19/18, 7/10/18, 08/14/18
9/4/18, 9/18/18, 10/16/18, 11/6/18
Docket 1
Tentative Ruling for 12/11/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 7, 12/11/18 at 2:00 p.m.).
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 21, 11/6/18 at 2:00 p.m.).
Tentative Ruling for 10/16/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 3, 10/16/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 18, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 7/10/18:
Please see the tentative ruling for the status conference in the Sakurais'
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bankruptcy case (calendar no. 2, 7/10/18 at 2:00 p.m.)
Tentative Ruling for 6/19/18:
Please see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/19/18 at 2:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required.
Current issues.
Amended Joint Plan/Amended Joint Disclosure Statement (dkt. 175, 176).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 177), appear to be identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 186, 187, 188. Counsel are directed to alert this Court and the parties at the hearing if they are not.
For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 4, 6/12/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Amended Joint Plan/Amended Joint Disclosure Statement* (dkt. 175, 176): At the status conference this Court will discuss appropriate deadlines.
Continued status conference: 8/7/18 at 2:00 p.m. Brief written status report due 7/24/18.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
Appearances required.
Current issues.
Joint Plan/Joint Disclosure Statement (dkt. 165, 166).
These documents, and the supporting declaration of Yuichiro Sakurai (dkt. 167). are substantially identical to the documents filed in the related bankruptcy case of debtors Yuichiro and Akemi Sakurai (the "Sakurais"). See Sakurai BK dkt. 176, 177, 178. For the tentative ruling regarding these documents, see the tentative ruling for the status conference in the Sakurais' bankruptcy case (calendar no. 2, 5/8/18 at 2:00 p.m.).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Joint Plan/Disclosure Statement* (dkt. 166, 167): The tentative ruling is to set a deadline of 5/22/18 to file (NOT SERVE - except on the U.S. Trustee) an amended joint plan and amended joint disclosure statement to address the foregoing issues.
Continued status conference: 6/12/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/10/18:
Appearances are not required on 4/10/18.
Current issues
Motion for Relief from Stay (dkt. 57). In light of the proposed settlement with the Fresco Parties, the tentative ruling is to continue the hearing to be concurrent with the continued status conference (see below).
Plan/Disclosure Statement. The tentative ruling is to conduct a combined hearing on the adequacy of the (forthcoming) disclosure statement and confirmation of the (forthcoming) plan to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/18/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 5/8/18 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
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Appearances required.
Current issues
Potential settlement with Fresco Parties. The parties must be prepared to address the status of their settlement negotiations and finalization of the draft settlement documents circulated 2/5/18, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (Sakurai case, no. 2:17-bk-22660-NB, dkt. 87, 104, 105, 114, 124, and Checkmate case, no. 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113, 119, 122).
Cash collateral & budget motions & stipulation (Sakurai dkt. 119, 122; Checkmate dkt. 114, 118, 119). Grant the cash collateral motion in the Sakurai case, subject to the same replacement liens and other terms and conditions as this Court's prior approvals of the use of cash collateral (see Sakurai case dkt. 43, 57); grant the budget motion in the Sakurai case; and approve the cash collateral stipulation in the Checkmate case on a final basis.
(d) Removed action (Adv. no. 2:17-ap-01558-NB), motions for stay and for remand (adv. dkt. 8, 10, 12, 13). The tentative ruling is that the motion for a stay pending determination by the District Court of the debtors' motion to withdraw the reference is moot, because the District Court has dismissed that motion. There is no tentative ruling on the motion to remand.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/20/18 at 1:00 p.m. Brief status report due 3/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/30/18:
Appearances required.
Current issues
Turnover of Documents and Information etc. The parties must be prepared to address the debtors' turnover of documents and information, and all other issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17- bk-22660-NB, dkt. 87, 104, 105, 114, and 2:17-bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109, 112, 113).
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 2/13/18 at 1:00 p.m. Brief status report due 2/6/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue all matters scheduled for today in the Sakurai and Checkmate cases and related adversary proceeding to 1/30/18 at 2:00 p.m. in view of the apparent inability of the Office of the United States Trustee to appear due to
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the shutdown of much of the federal government. At the continued hearing the parties must be prepared to address all issues appropriate to raise at a status conference, including the issues in their recent status reports and related documents (case no. 2:17-bk-22660-NB, dkt. 87, 104, 105, and 2:17-
bk-22648-NB, dkt. 90, 93, 100, 102, 104, 105, 106, 109). Appearances are
not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/9/18:
Appearances required by the debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 90): The status report states that the debtor's business is dormant with respect to its financing of the purchase of used medical equipment. Where is Radiolody Solutions storing the $4.6M worth of financed equipment and does the debtor have a perfected security interest in the equipment?
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served, dkt. 63, 69)
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 3/6/18 at 1:00 p.m. Brief status report due 2/20/18.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 11/14/17:
Appearances required by the debtor's principals and debtor's counsel.
Proposed orders: The debtor is directed to serve and lodge proposed orders on each motion listed below via LOU within 7 days after the hearing date.
Current issues
Status Report (dkt. 37): The status report states that the debtor has no executory contracts. What about all the contracts with Radiology Solutions Inc./Corp. (whichever name is correct)?
Cash collateral motion (dkt.9): The debtor reports (dkt. 53, p.3) that it has reached a stipulation with Community Bank regarding the use of cash collateral, but as of the preparation of this tentative ruling no such stipulation appears on the docket. If there is no such stipulation, or if it does not moot the bank's opposition (dkt. 50), then the parties should be prepared to address the merits of that opposition. In addition, the parties should be prepared to address the objection of the Fresco parties (dkt. 49) and the debtor's response (dkt. 53).
Payroll motion (dkt. 6). The tentative ruling is to grant this motion on a final basis.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18
Plan/Disclosure Statement*: file by 4/16/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - the court will set a deadline and procedures at a later time).
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Continued status conference: 12/19/17 at 1:00 p.m. Brief status report due 12/7/17.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/14/17:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/26/17:
Appearances required by counsel for the debtor.
Current issues
Proof of service (dkt. 28). Service appears to be in compliance with this court's orders shortening time, except that no addresses are listed. The following tentative rulings are contingent on filing a corrected proof of service, no later than the day after this hearing, listing those addresses.
Cash collateral motion (dkt. 9). Subject to any opposition at the hearing, the tentative ruling is to grant this motion on the terms set forth in the separate tentative ruling on that motion.
Payroll motion (dkt. 6). Subject to any opposition at the hearing, the tentative ruling is to grant this motion. Proposed order: Movant is directed to serve and lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 11/14/17 at 1:00 p.m. (see order, dkt. 20).
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*Warning: special procedures apply (see order setting initial status conference).
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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Adv#: 2:18-01062 Checkmate King Co., LTD v. Radiology Solutions Corp. et al
(2) Claim and Delivery; (3) Conversion; (4) Breach of Guaranty;
(5) Fraud; (6) Preliminary Injunction; and (7) Constructive Trust fr. 5/8/18, 6/12/18, 6/19/18, 07/10/18, 08/14/18, 9/4/18, 9/18/18, 10/16/18, 11/6/18
Docket 1
Tentative Ruling for 12/11/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 7, 12/11/18 at 2:00 p.m.).
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 21, 11/6/18 at 2:00 p.m.).
Tentative Ruling for 10/16/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 3, 10/16/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 18, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 9/4/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 11, 9/4/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the Sakurai status conference (calendar no. 6, 8/14/18 at 2:00 p.m.).
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Tentative Ruling for 7/10/18 (same as for 6/19/18):
Please see the tentative ruling for the Sakurai status conference (calendar no. 2, 7/10/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Appearances required.
Current Issues.
Joint Status Report and Notice of Continuances. This Court's 5/8/18 tentative ruling (see below) was not opposed, so it became this Court's actual ruling.
This Court directed (i) Checkmate to file and serve a notice of continuances attaching and incorporating by reference the deadlines in that tentative ruling by 5/7/18, and (ii) the parties to file a brief joint status report by 5/29/18. As of the preparation of this tentative ruling, none of the parties have complied. The parties are cautioned that failure to abide by applicable deadlines in future may result in adverse consequences.
Motion for TRO & Claim and Delivery (adv. dkt. 10).
Plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") has filed a stipulation (adv. dkt. 30) with defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") for turnover of equipment. But Checkmate has not provided any evidence that it has relief from the automatic stay and consent of the Chapter 7 Trustee in the RS and Fower bankruptcy cases for such turnover (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA). The tentative ruling is to set a deadline of 6/19/18 for Checkmate to file a declaration attaching evidence sufficient to establish those things, and lodge a revised proposed order to approve the stipulation.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time. Continue to 7/17/18 at 2:00 p.m., brief joint status report due 7/3/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/8/18:
The tentative ruling is to continue all pending matters in this adversary proceeding to 6/12/18 at 2:00 p.m. for the reason stated below, with a brief joint status report due 5/29/18, and with a deadline of 5/7/18 for the plaintiff to file and serve a notice of continuances attaching and incorporating by reference the deadlines in this tentative ruling (assuming that this Court is not persuaded to depart from this tentative ruling). Appearances are not required on 5/8/18.
Current Issues. This Court has reviewed the parties' status reports (adv. dkt. 24 & 26) and the other filed documents and records in this adversary proceeding.
Motion for TRO & Claim and Delivery (adv. dkt. 10). At the 4/9/18 hearing on this motion, counsel for plaintiff/debtor Checkmate King Co., Ltd. ("Checkmate") apprised this Court of the bankruptcy filings of defendants Radiology Solutions Corp. ("RS") and George Fower ("Fower") (Case Nos. 8:18-bk-10585-TA and 8:18-bk-10583-TA) and requested a continuance of this hearing to allow time to obtain orders granting relief from stay with annulment. In the Joint status report (adv. dkt. 24), Checkmate states that the hearings on the relief from stay motions are scheduled for 5/15/18. Accordingly, the tentative ruling is to continue this motion to the date and time set forth at the start of this tentative ruling.
Siemens Motion to Dismiss (adv. dkt. 27, the "MTD"). Defendant Siemens Medical Solutions USA, Inc. ("Siemens") has properly self- calendared its MTD for 6/12/18 at 11:00 a.m. Siemens anticipates that it may be voluntarily dismissed by plaintiff (see adv. dkt. 24), but if that does not occur then this Court anticipates that the MTD may take 15 minutes or more to hear. This Court's practice is that matters anticipated to take 15 minutes or more are heard on the 2:00 p.m. calendar (not available for self-calendaring, except by permission of this Court). Therefore the tentative ruling is to re- calendar the MTD from 11:00 a.m. to 2:00 p.m., which is concurrent with the
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other matters in this adversary proceeding that are on today's calendar.
Deadlines: This adversary proceeding has been pending since 3/6/18. It is premature to set a discovery cutoff and other deadlines at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Checkmate King Co., LTD Represented By Robert M Aronson
Defendant(s):
Radiology Solutions Corp. Represented By Vatche Chorbajian
George Tyler Fower Represented By Vatche Chorbajian
Siemens Medical Solutions USA Inc Represented By
Marsha A Houston
Plaintiff(s):
Checkmate King Co., LTD Represented By Robert M Aronson
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fr. 11/14/17, 1/9/18, 1/23/18, 1/30/18, 02/13/18, 4/10/18, 5/8/18, 6/12/18, 6/19/18, 7/10/18, 08/14/18,
9/4/18, 9/18/18, 10/16/18, 11/6/18
Docket 1
Tentative Ruling for 12/11/18:
Appearances Required
Current Issues
Chapter 11 Plan (Sakurai dkt. 309, Checkmate dkt. 234, the
"Plan")
Based on the status reports filed by Debtors (Checkmate dkt. 246,
Sakurai dkt. 329), the responses filed by the Fresco parties (Checkmate dkt. 247, Sakurai dkt. 330), and Debtors' reply (Sakurai dkt. 335), and the recent developments regarding the various properties (e.g., Sakurai dkt. 331-34, ), the parties should be prepared to address whether the Fresco parties will demand conversion of these cases pursuant to the terms of the parties' earlier stipulation (Sakurai dkt. 266, and see, e.g., dkt. 282).
This Court understands that the Japanese property has not been listed for sale despite this long-standing requirement, as reflected in this Court's order approving the disclosure statement (Sakurai dkt. 325). Debtors have offered various excuses, but the tentative ruling is that whether or not there are good reasons for the delay, that is irrelevant because under the parties' stipulation the Fresco parties do not need any reasons to require conversion, given that Debtors have not met the deadlines.
RS/Fower Adversary Proceeding (2:18-ap-01602-NB)
The parties have indicated the need for further discovery. The tentative ruling is to extend the deadline for discovery to 2/15/19 and to set this case for a further status conference concurrent with the continued status conferences in the main cases, set forth below.
Deadlines/dates. This case was filed on 10/16/17.
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Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: see above.
Continued status conference (in the Sakurai and Checkmate cases, and the related RS/Fower adversary proceeding): for 1/15/19 at 2:00 p.m., with a brief status report due 1/8/19.
*Warning: special procedures apply (see order setting principal status conference).
Revised Tentative Ruling for 11/6/18:
Appearances required.
Current Issues
Chapter 11 Plan (Sakurai dkt. 309, Checkmate dkt. 234, the "Plan"); Disclosure Statement (Sakurai dkt. 310, Checkmate dkt. 235, the "D/S"). Approve the D/S on a final basis, and confirm the Plan, based on the ballot summary (Sakurai dkt. 313) and subject to an offer of proof that the proof of service (Sakurai dkt. 311) should be deemed amended to include service of the Plan, instead of listing the D/S twice. Debtors are directed to lodge proposed orders within 7 days after this hearing (each estate should have an order finally approving the D/S, and a second order confirming the Plan and setting the post-confirmation status conference set forth below).
Motion to Compromise with Community Bank (Sakurai dkt. 301, Checkmate dkt. 226). Grant. Community Bank is directed to lodge a proposed order within 7 days after this hearing.
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). Continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: see above.
Continued status conference: Set post-confirmation status conferences in the Sakurai and Checkmate cases, and the related RS/Fower adversary proceeding, for 12/11/18 at 2:00 p.m., with a brief status report due 12/4/18.
*Warning: special procedures apply (see order setting principal status
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conference).
Tentative Ruling for 11/6/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 10/16/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current Issues
Chapter 11 Plan (Sakurai dkt. .295, Checkmate dkt. 221, the "Plan"); Disclosure Statement (Sakurai dkt. 296, Checkmate dkt. 222, the "D/S"). The parties should be prepared to discuss whether the Plan and D/S fully comply with the Stipulation with the Fresco Parties (D/S, Ex.1, and dkt. 266), including whether the Plan provides for the nondischargeability of the Fresco Parties' claim and the Fresco Parties' right to appoint forensic accountants. In addition, Exhibit C to the disclosure statement does not appear to include the $793,000 account pledged to Citizens Business Bank (the "Bank") or the $400,000 "note owed [by an undisclosed person] in the Sakurai case." D/S, Attachment, p.3:11-14. In addition, periods "A" through "F" on Exhibit C are confusing. In addition, Exhibit F appears to include some printing and other errors.
The tentative ruling is to set a deadline of 10/18/18 for Debtors to file a further amended Plan and amended D/S to correct these issues and lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the D/S and confirmation of the Plan for the same time as the continued status conference (see below). The tentative ruling is that the voting package should include Mr. Sakurai's declaration (Sakurai dkt. 297) but not include any of the exhibits to it, and instead include a note stating that the exhibits are available upon request.
In addition, the tentative ruling is that the Plan must include provisions to safeguard proceeds from the sales of property, liquidation of the bank account pledged to the Bank, and any other assets of the estate. The tentative ruling is that any proceeds must be transferred directly from escrow
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to a bank account from which funds cannot be released absent the signature of Debtors' counsel, upon order of this Court.
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The tentative ruling is to continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: see above.
Continued status conference: Continue the status conferences in the Sakurai and Checkmate cases to 11/6/18 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
Tentative Ruling for 9/18/18:
Appearances are not required.
Current issues.
Fresco Parties' Motions to Convert Cases (dkt. 199 & Checkmate 2:17-bk-22648-NB, dkt. 185). The tentative ruling is to tentatively approve the parties' stipulations (Sakurai dkt. 266 and Checkmate dkt. 208) as settlements of the respective motions under Rule 9019 (Fed. R. Bankr. P.), and to rule that notice of such settlements need not be provided pursuant to Rule 2002(a)(3). The cause for not requiring notice is that the motions to convert were properly served, a hearing was held, the parties who sought to be heard on that matter had an opportunity to be heard, the stipulation does not appear to result in any relief different in degree from what could have been ordered at that hearing, and to the contrary the resolution appears to be better for all creditors (and all other parties in interest) than the alternative of immediate conversion of each case to chapter 7.
Proposed orders: The Fresco Parties are directed to lodge two
separate proposed orders (one for each settlement) via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The tentative ruling is to continue the status conference to the date and time
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stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: per the parties' stipulation (dkt. 266).
Continued status conference: Continue the status conferences in the Sakurai and Checkmate cases to 10/9/18 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
Appearances required.
Current issues.
Fresco Parties' Motion to Convert Cases (dkt. 199 & Checkmate 2:17-bk-22648-NB, dkt. 185). The tentative ruling is to grant Fresco's motions to convert the Checkmate and Sakurai cases to chapter 7 for the following reasons.
Gross mismanagement. The tentative finding of fact is that the debtors have grossly mismanaged their estates such that cause exists under 1112(b)(4)(B) to convert their cases. These cases have been pending for nearly a year, since 10/16/17, only very belated and half-hearted investigation or collection activity against Radiology Solutions and Fower - either using legal enforcement or practical steps. For example, at hearings on 11/14/17 and 1/30/18, the debtors maintained their belief that they could recover 100% on the dated receiveables from Radiology Solutions, despite this Court's expressed concerns with the debtors' counsel regarding the
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apparent lack of collection activity based on Checkmate's failure to use the vast panoply of litigation tools available to them, including examinations under Rule 2004 (Fed. R. Bankr. P.), other discovery tools, remedies such as immediately seeking restraining orders and injunctions, and non-litigation approaches such as pressuring Radiology Solutions and Fower by reporting their defaults to Siemens or attempting to use pressure from other suppliers, customers, government regulators, or other persons. All of those avenues should have been explored vigorously, both prepetition and postpetition, and disclosed to parties in interest in these cases.
Other "cause." The debtors appear to have run through vast amounts of money to "purchase" equipment that does not exist, and yet as set forth above they have a very cavalier attitude toward attempting to engage in discovery or collection, while continuing to insist that they expected very substantial recoveries from those sources and/or from equipment (which turned out not to exist). The tentative finding of fact is that these circumstances show not just gross mismanagement but also that the debtors are hiding facts, or they are attempting to run out the clock on possible causes of action against them or transferees of their assets, or both.
The debtors' counter-argument about the best interests of creditors is not persuasive. The debtors argue that under their liquidation analysis (Sakurai, dkt. 240, PDF p. 14, Checkmate, dkt. 194, PDF p. 17) creditors will receive faster and better recoveries if the debtors are permitted to engage in a liquidation through chapter 11, rather than converting these cases to chapter 7. There are several problems with this argument.
First, this Court questions the debtors' projected recoveries in chapter
11. The debtors have been wildly inaccurate (or have intentionally hidden the truth) before, as set forth above. This Court has no faith in the Debtors to adequately disclose and maximize the value of their remaining assets, such as the house in Japan or purported interests in that house. Moreover, this Court is concerned about the debtor's management of whatever is recovered, such as what might happen to proceeds from the sale of real property. This Court recognizes that safeguards can be attempted; but safeguards can also be evaded, and the tentative ruling is that the simplest and best safeguard is to appoint a chapter 7 trustee.
Second, this Court questions the debtor's projected lack of substantial recoveries in chapter 7. The tentative ruling is that the Fresco Parties have the better arguments regarding the potential benefits to unsecured creditors
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in a chapter 7 case (perhaps as much as 80% or more).
Third, supposing for the sake of discussion that the debtors were accurate in their projected recoveries in a liquidating chapter 11 case, and their comparison with projected recoveries in a chapter 7 case, that is not the only consideration. This Court must consider the integrity of the bankruptcy system. Given the debtors' gross mismanagement and this Court's concerns about the debtors' conduct (as described above) it appears that the only adequate safeguard of the integrity of the bankruptcy system is to convert these cases to chapter 7.
Evidentiary Objections (Sakurai, dkt. 233, 252) & (Checkmate 2:17-bk-22648-NB, dkt. 200, 204). The tentative ruling is that the history of this case and this Court's own admonishments to the debtors provides ample support for conversion, so this Court need not resolve the parties' respective evidentiary objections.
Proposed Orders. The Fresco Parties are directed to lodge proposed orders via this Court's LOU system within 7 days of the hearing.
Application to Employ KW Commercial Inland Empire (dkt. 197) and Neiman Realty (dkt. 206). If this Court adopts the tentative ruling set forth above, the tentative ruling is to continue these hearings to the date and time set forth below to allow time for the chapter 7 trustees to weigh in.
RS/Fower Adversary Proceeding (2:18-ap-01602-NB). The tentative ruling is to continue the status conference to the date and time stated below.
Deadlines/dates. This case was filed on 10/16/17.
Bar date: 1/17/18 (order timely served. dkt. 58, 59).
Amended Joint Plan/Amended Joint Disclosure Statement*: TBD based on the outcome of the Conversion Motions.
Continued status conference: If this Court converts these cases to chapter 7, the tentative ruling is to continue the status conference in the Sakurai and Checkmate cases to 10/9/18 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Rulings for 10/26/17 through 8/14/18: [OMITTED FOR BREVITY]
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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Docket 19
Revised Tentative Ruling for 12/11/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current Issues
Fee applications Grant in full:
Debtor's counsel: $291,117.00 in fees and $825.60 in expenses for a total of $291,942.60 to Greenberg Glusker Fields Claman & Machtinger LLP (dkt 257);
Debtor's consultants: $139,590.00 in fees to NV Consulting Services (dkt. 259);
Committee counsel: $120,080.00 in fees and $2,058.69 in expenses for a total of $122,138.69 to Pachulski Stang Ziehl & Johnes LLP (dkt 256); and
grant all additional relief requested in the applications (e.g., directing Siena to pay the balance of the carve-outs).
Declarations of Andrew S. Conway (dkt. 267) and Nellwyn Voorhies (dkt. 268) Re: Conditional Dismissal
The parties should be prepared to address (i) whether the purported past due October 2018 rents and charges have been paid to Twelve Oaks Mall, LLC, (ii) whether the balance purportedly owed to noticing agent Donlin, Recano & Co., Inc. have been paid, and (iii) whether all other conditions for dismissal in this Court's order (dkt. 254) have been or will be satisfied, and whether this Court should set briefing schedules or establish any other procedures to resolve whatever issues might be outstanding.
B&B Bachrach, LLC Motion for Final Decree (dkt. 324)
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The tentative ruling is to grant the Motion for Final Decree and enter an order closing that case.
Deadlines/dates. This case was filed on 2/16/18.
Bar date: Timely served (dkt. 155, 163, 167).
Plan/Disclosure Statement*: TBD
Continued status conference: Continue to 1/8/19 at 2:00 p.m., in view of the conditions involved in the slightly deferred dismissal requested by Debtor and the Committee. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
Tentative Ruling for 12/11/18:
This court anticipates posting a tentative ruling at a later time.
[PRIOR TENTATIVE RULINGS OMITTED FOR BREVITY]
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
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(2) Compelling Immediate Payment fr. 11/6/18
Docket 225
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
Movant(s):
Starwood Retail Partners LLC Represented By Brian D Huben
The Forbes Company Represented By Brian D Huben
2:00 PM
Docket 259
Tentative Ruling for 12/11/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 8, 12/11/18 at 2:00 p.m.)
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
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Fields Claman & Machtinger LLP for Approval of Compensation
and Reimbursement of Expenses for the Period of February 16, 2018 Through November 16, 2018
Docket 257
Tentative Ruling for 12/11/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 8, 12/11/18 at 2:00 p.m.)
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
Docket 256
Tentative Ruling for 12/11/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 8, 12/11/18 at 2:00 p.m.)
Debtor(s):
B&B Liquidating, LLC Represented By Brian L Davidoff
2:00 PM
1/23/18, 02/13/18, 5/1/18, 5/29/18, 6/12/18, 08/14/18
9/18/18, 11/6/18
Docket 1
Tentative Ruling for 12/11/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 8, 12/11/18 at 2:00 p.m.)
Tentative Ruling for 11/6/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 18, 11/6/18 at 2:00 p.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 7, 9/18/18 at 2:00 p.m.).
Tentative Ruling for 8/14/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 2, 8/14/18 at 2:00 p.m.).
Tentative Ruling for 6/12/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 2, 6/12/18 at 2:00 p.m.).
Tentative Ruling for 5/29/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 4, 5/29/18 at 2:00 p.m.).
Tentative Ruling for 5/1/18:
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Continue to 5/29/18 at 2:00 p.m. Appearances are not required on 5/1/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/17/18:
Appearances required.
Current Issues.
B&B Liquidating, LLC (2:18-bk-11744-NB). On 2/16/18 B&B Liquidating LLC ("BBL") filed a chapter 11 petition for relief before this court. In its "first-day" motions, BBL details the troubles B&B Bachrach ("BBB") encountered post-confirmation, which resulted in the need to liquidate. See e.g., BBL Liquidating Motion, dkt. 17.
BBB should be prepared to address the debtor's progress in liquidating the estate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/13/18:
Continue to 4/17/18 at 2:00 p.m. in view of the debtor's post-confirmation status report (dkt. 313). Brief status report due 4/3/18. Appearances are not required on 2/13/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/18:
Continue to 2/13/18 at 2:00 p.m., in view of (a) the debtor's status report (dkt. 313) and (b) the inability of the Office of the United States Trustee to appear on 1/23/18 in view of the shutdown of much of the federal government. Note: Prior to 2/13/18 this court anticipates posting a tentative ruling for a further continuance to 4/17/18 at 2:00 p.m., unless a party in interest files a status report no later than 2/6/18 requesting to be heard on 2/13/18. Appearances are not required on 1/23/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/7/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any issues appropriate for resolution at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/17/17:
Continue to 11/7/17 at 2:00 p.m. to be heard concurrent with the fee
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applications. Appearances are not required on 10/17/17.
If you wish to dispute the above tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings".
Tentative Ruling for 9/12/17:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address any outstanding disputes with landlords, or other issues that are appropriate for disposition at this post-confirmation status conference.
If you do not appear, and the matter is not adequately resolved by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
B&B Bachrach, LLC Represented By Brian L Davidoff
2:00 PM
Docket 324
Tentative Ruling for 12/11/18:
Please see the tentative ruling for the status conference in the B&B Liquidating, LLC case (calendar no. 8, 12/11/18 at 2:00 p.m.)
Debtor(s):
B&B Bachrach, LLC Represented By Brian L Davidoff
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REVERSE MORTGAGE FUNDING LLC
vs DEBTOR
Docket 59
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following.
HUD regulation
Movant states that relief from stay is appropriate because HUD regulations require compliance via submission of the Occupancy Certificate. This Court was not provided with copies of such HUD regulations, or citations to them.
Grounds for foreclosure under deed of trust
It is unclear whether failure to supply the Occupancy Certificate constitutes grounds for foreclosure under the deed of trust. What is Movant's basis for that assertion?
Cost of Forced Place Insurance
Movant alleges that it incurred costs of $4,638 for Forced Placed Insurance due to Debtor's failure ot provide the Occupancy Certificate. This Court was not provided with evidence that this is the price of insurance.
Debtor's untimely opposition
One week after the opposition deadline, Debtor filed an opposition stating that the Occupancy Certificate has been provided and that insurance advances will be cured (dkt. 61). Why was Debtor's opposition not timely filed?
Adequate protection order?
The parties should be prepared to address whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to
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dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Joyce Elaine Durden Represented By Thomas B Ure
Movant(s):
Reverse Mortgage Funding, LLC Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
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WILMINGTON TRUST, NATIONAL ASSOC
vs DEBTOR
Docket 36
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Martha Martinez Represented By Julie J Villalobos
Movant(s):
Wilmington Trust, National Represented By Sumit Bode Robert P Zahradka
Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BUDGET FUNDING I, LLC
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Patricia Anne Nevels-Perry Represented By Kahlil J McAlpin
Movant(s):
Budget Funding I, LLC, A Delaware Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMIR HECHTER 24.42% OCEAN 18, LLC 75.58%
vs DEBTOR
Docket 61
Deny without prejudice, for the reasons stated in the response (dkt. 66). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Order granting motion to use cash collateral (dkt. 51).
Reasons for denial: Movant is currently receiving adequate protection payments pursuant to the cash collateral order, and their interest in the subject property is protected by an adequate equity cushion (see Debtor's opposition, dkt. 66). More specifically, based on the Broker's Price Opinion provided (dkt. 66, ex. 1), the value of the subject property is $520,000. The total value of all liens encumbering the property is unclear, with Movant providing a figure of $437,701.88 (dkt. 61), and Debtor providng a figure of $439,620.05 (dkt. 66). Assuming Debtor's figure is correct, there is an equity cushion of $520,000 - $439,620.05 = $80,379.95, or 15.46%.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by
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consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
Movant(s):
Amir Hechter 24.42% Ocean 18, Represented By
Bonni S Mantovani
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LOUIS J HILLEGASS JR & BONNIE E HILLEGASS;
BRIAN PROCEL & COURTNEY PROCEL; ZUZANA CERNIK;
JOEL B MEYER & CHARLENE R MEYER; JTWRIS; SUNWEST TRUST; DAVID KATZ; SUSAN KATZ REVOCABLE TRUST; STEVEN GOLDENBERG
vs DEBTOR
Docket 36
Debtor(s):
Migan Murray Represented By Andrew Moher
Movant(s):
Louis J Hillegass Jr and Bonnie E Represented By
Julian K Bach
Trustee(s):
Kathy A Dockery (TR) Pro Se
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PACIFIC UNION FINANCIAL, LLC
vs DEBTOR
Docket 16
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
There is no stay
This case has been dismissed, which terminates the automatic stay. See
11 U.S.C. 349(b)(3) & 362(c).
In addition and in the alternative, this Court grants the following relief.
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief. Grant the request for retroactive annulment of the stay. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re
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Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). Accordingly, the tentative ruling is to condition any relief from the automatic stay on this Court's determination that this motion shall not result in the application of sections 109(g)
and 362(b)(21)(A) to Debtor or any property other than the property that is the subject of this motion for relief from the automatic stay, and that by not contesting this tentative ruling the movant has waived and forfeited any contrary argument. See In re Leafty, 489 B.R. 545, 550-51 (9th Cir. BAP 2012); In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R. 261, 270.
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cindy S Choi Pro Se
Movant(s):
Pacific Union Financial, LLC Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NPI DEBT FUND I, LP
vs DEBTOR
Docket 17
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
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For the avoidance of doubt, any acts by the movant to obtain
exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that the debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that the debtor was involved and the debtor is given clear notice that the movant seeks an express finding that the debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). Accordingly, the tentative ruling is to condition any relief from the automatic stay on this Court's determination that this motion shall not result in the application of sections 109(g)
(2) and 362(b)(21)(A) to Debtor or any property other than the property that is the subject of this motion for relief from the automatic stay, and that by not contesting this tentative ruling the movant has waived and forfeited any contrary argument. See In re Leafty, 489 B.R. 545, 550-51 (9th Cir. BAP 2012); In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R. 261, 270.
Effective date of relief Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jose G Fernandez Pro Se
Movant(s):
NPI Debt Fund I, LP Represented By Brian R Nelson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HYUNDAI LEASE TITLING TRUST
vs DEBTOR
Docket 32
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Lyne Maudl Gallagher Represented By Cynthia L Gibson
Movant(s):
Hyundai Lease Titling Trust Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SANTANDER CONSUMER USA INC.
vs DEBTOR
Docket 53
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Constance Rebecca Paggett Represented By Joseph L Pittera
Movant(s):
Santander Consumer USA Inc. dba Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FINANCIAL SERVICES VEHICLE TRUST
vs DEBTOR
Docket 25
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Emile Auguste Jr. Represented By Roseann Frazee
Movant(s):
Financial Services Vehicle Trust Represented By
Cheryl A Skigin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICAN HONDA FINANCE CORP
vs DEBTOR
Docket 15
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Nina Abram Pro Se
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NRX REO X LLC
vs DEBTOR
Docket 36
Grant in part and deny in part, as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief
Grant the request for retroactive annulment of the stay. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003).
Relief notwithstanding future bankruptcy cases.
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests "in rem" relief (i.e., relief applicable notwithstanding
future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580
B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-
10:00 AM
NB, docket no. 31)). The tentative ruling is to deny that request because there is insufficient evidence that Debtor's multiple bankruptcy petitions were part of a "scheme" to "hinder," "delay," or "defraud" creditors within the meaning of section 362(d)(4), or that there is comparable conduct that would warrant equivalent relief outside of section 362(d)(4).
In particular, it appears that Debtor made substantial payments in his 2016 bankruptcy case, which was not dismissed until 2018. Thereafter, although Debtor filed a prior bankruptcy case in 2018 that was dismissed for failure to file documents, Debtor's current bankruptcy case, which was filed on the same day as the foreclosure sale, appears to show a realistic, good faith attempt to (i) prevent foreclosure and (ii) restructure Debtor's financial obligations so as to repay all arrears on the property in full, as opposed to being part of a scheme to hinder, delay, or defraud creditors.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Napoleon Calderon Represented By Daniel A DeSoto
Movant(s):
NRZ REO X LLC, its successors Represented By
Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 29
Debtor(s):
Laura Longley Represented By Erika Luna
Movant(s):
Wilmington Savings Fund Society, Represented By
John D Schlotter Heather D Bock Dane W Exnowski Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JB MORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 29
Debtor(s):
Juan Carlos Ramirez Represented By Alla Tenina
Movant(s):
JPMorgan Chase Bank, National Represented By
Christina J O
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 26
Debtor(s):
Cynthia Denise Taylor Represented By Barry E Borowitz
Movant(s):
U.S. Bank National Association, as Represented By
Angie M Marth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, N.A. vs
DEBTOR
Docket 28
Debtor(s):
Araceli A Castro Represented By Thomas B Ure
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
vs DEBTOR
Docket 47
Tentative Ruling for 12/18/18
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order as contemplated by the parties at the 11/27/18 hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/27/18
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the
10:00 AM
automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Allyson M Theophile Represented By Matthew D. Resnik
Movant(s):
Deutsche Bank National Trust Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 16
Tentative Ruling for 12/18/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether they will agree to the terms of an adequate protection order (see this Court's interim order, dkt. 22, and the debtor's late-filed supplemental evidence of projected contributions from her parents and feasibility, dkt. 26).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/27/18:
Appearances required. The parties should be prepared to address whether they will agree to the terms of an adequate protection order, including provisions that will make any future bankruptcy case ineffective to stay any acts against the subject property ("in rem" relief). See Debtor's response (dkt. 20).
Proposed order: If this Court is persuaded to grant such relief, then Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's
10:00 AM
final ruling. See LBR 9021-1(b)(1)(B).
More specifically, the tentative ruling is that (1) on the present record some form of relief from the automatic stay is required, including in rem relief, because Debtor appears to been involved in a "scheme" to "hinder" or "delay" creditors within the meaning of 11 U.S.C. 362(d)(4), due to the filing of this case on 10/2/18, within a relatively short time after the dismissal on 6/5/18 of the bankruptcy case filed by Francisca Sanchez (2:18-bk-15538-WB); but (2) "relief" from the automatic stay does not necessarily mean "termination" of the stay, and could take the form of an adequate protection order ("APO") that (a) requires monthly payments and (b) provides in rem relief as follows:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed. Any additional request for relief applicable to future bankruptcy cases is denied (e.g., any request to grant relief against third parties without any notice is denied) due to lack of sufficient factual or legal grounds presented in support of such relief.
In other words, if Debtor has the financial ability to cure the arrears and otherwise prosecute this bankruptcy case, then Debtor can do so under an adequate protection order; but Debtor must establish that she has the financial ability to do so. In addition, no future bankruptcy case will affect the property (subject to the limitations in 11 U.S.C. 362(d)(4)), so Debtor and any other person who asserts an interest in the property or who is a signatory to the loan documents cannot continue to file repeated bankruptcy cases simply to delay any foreclosure.
The grounds for such relief are that this Court has the power to grant relief in the form of modifying or conditioning the automatic stay, not just terminating it (11 U.S.C. 362(d)), and the foregoing relief appears to be appropriate in the present circumstances. See generally In re Vazquez, 580
B.R. 526 (Bankr. C.D. Cal. 2017) (even debtor who has excuses for hindering
10:00 AM
and delaying creditors can be subject to in rem relief); In re Bousheri (Case No. 2:15-bk-11345-NB), dkt. 79 (analogous order, in valuation context, addressing effect of unauthorized transfer of interest in property).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Perla Eva Sanchez Represented By Lionel E Giron
Movant(s):
Wells Fargo Bank, N.A. Represented By Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
OCWEN LOAN SERVICING, LLC
vs DEBTOR
Docket 60
Tentative Ruling for 12/18/18 (same as for 10/16/18):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied
10:00 AM
on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Alberto Ramos Represented By Claudia C Osuna
Joint Debtor(s):
Vanessa Ramos Represented By Claudia C Osuna
Movant(s):
Ocwen Loan Servicing, LLC Represented By Seth Greenhill Keith Labell Theron S Covey Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 33
Debtor(s):
Carlos Dino Bohl Represented By
Ramiro Flores Munoz
Movant(s):
U.S. Bank National Association Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK TRUST COMPANY AMERICAS
vs
DEBTOR (S)
Docket 40
Tentative Ruling for 12/18/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Reason: At the 12/4/18 hearing, this Court set a deadline of 12/11/18 for Debtor to provide evidence in support of any further continuance and adequate protection, including evidence of the status of the attempted loan modification. Debtor did not file any evience by the deadline.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
In view of the alleged equity in the property this Court grants the following limited relief to Debtor:
Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3). No foreclosure sale of the property may take place prior to 2/28/19.
Co-debtor stay
10:00 AM
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/4/18 (same as for 10/2/18, and 8/7/18 except telephonic appearances encouraged):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Victor Hugo Anaya Represented By Erika Luna
10:00 AM
Joint Debtor(s):
Nora Leticia Anaya Represented By Erika Luna
Movant(s):
Deutsche Bank Trust Company Represented By Sheereen Middleton Keith Labell
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 12
Grant, subject to the following conditions, and also subject to any opposition at the hearing. Appearances required.
As provided in the Order Granting Application and Setting Hearing on Shortened Notice (dkt. 16), Counsel for the Debtor is directed to adress why notice could not have been provided sooner.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jonathan Ahron Represented By Scott Kosner
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON TRUST
vs DEBTOR
Docket 36
Tentative Ruling for 12/18/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order as contemplated at the 12/11/18 hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/11/18:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination. Terminate the automatic stay under 11 U.S.C. 362(d)(1).
Any co-debtor stay (11 U.S.C. 1301(c)) is also terminated, because it has not been shown to have any basis to exist independent of the stay under 11
U.S.C. 362(a). To the extent, if any, that the motion seeks to terminate the
10:00 AM
automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief. Deny the request to waive the 14-day stay provided by FRBP 4001(a)(3) for lack of sufficient cause shown.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Paul Albert Satterlee Represented By Onyinye N Anyama
Movant(s):
Wilmington Trust, National Represented By Dipika Parmar Cassandra J Richey Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 33
Appearances required. There is no tentative ruling, but the parties should be prepared to address (1) any written or oral opposition at or prior to the hearing and (2) why Debtors did not file the motion on regular notice, because the subject nonbankruptcy action has been on appeal since prior to the petition filing (see dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By Michael Jay Berger
Movant(s):
Edmond Melamed Represented By
10:00 AM
Michael Jay Berger
Rozita Melamed Represented By Michael Jay Berger
11:00 AM
Application for Fees and Expenses [Jason M Rund, Chapter 7 Trustee]
Docket 120
Approve the final report (dkt. 120) and award the Chapter 7 Trustee $49,933.14 in fees and $190.56 in expenses. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
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Docket 113
Grant the application (dkt. 113), as modified by the Errata (dkt. 114), for
$76,856.00 in fees and $2.077.15 in expenses. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
Docket 118
Grant the application (dkt. 118) for $13,188.00 in fees and $320.90 in expenses for a total of $13,508.90. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sociedad Mutualista Cinco de Mayo Represented By
Edwing F Keller
Trustee(s):
Jason M Rund (TR) Represented By Robert A Hessling
11:00 AM
Docket 137
- NONE LISTED -
Debtor(s):
Maximum Legal (California), LLP Represented By
Martin J Brill Daniel H Reiss Lindsey L Smith
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer Steven Werth
11:00 AM
Docket 131
- NONE LISTED -
Debtor(s):
Maximum Legal (California), LLP Represented By
Martin J Brill Daniel H Reiss Lindsey L Smith
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer Steven Werth
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Adv#: 2:18-01315 Layfield v. Pachulski et al
Breach of the Covenant of Good Faith and Fair Dealing;
Interference with Contractual Relations; (4) Intentional Interference with Prospective Economic Advantage; and
(5) Negligence
Docket 1
Continue to 3/26/19 at 2:00 p.m. Appearances are not required on 12/18/18.
Reasons:
The plaintiff, Philip James Layfield, lacks standing, as recognized in the stipulation (adv. dkt. 3) between (a) Wesley Avery, the Chapter 7 Trustee in the invididual (involuntary) bankruptcy case of Mr. Layfield, and (b) defendant Richard M. Pachulski, the Chapter 11 Trustee in the bankruptcy case of Layfield & Barrett, APC. See adv. dkt. 3, Recital "K," and adv. dkt. 4 (order approving stipulation). Although Mr. Layfield has filed papers requesting dismissal of his bankruptcy case, and numerous other things, this Court has denied his requests.
Meanwhile, all deadlines including the time to file any answer or other pleading have been extended indefinitely as to two other defendants, US Claims Opco, LLC ("USCO") and DRB Capital ("DRB"), by stipulation (adv. dkt. 13) and order thereon (adv. dkt. 15). The last defendant, Advanced Legal Capital, LLC ("Advanced") has filed an answer (adv. dkt. 5) that includes a prayer for a judgment of dismissal, an award of its attorney fees and costs, and sanctions and other remedies.
In view of possible appeals by Mr. Layfield, or any other avenues by which he may attempt to gain standing, it appears to be premature for this Court to hold any Status Conference in this adversary proceeding at this time. In addition, both because Mr. Layfield may not have exhausted his remedies, and because sanctions usually must be sought by separate motion (see, e.g., Rule 9011(c)(1)(A), Fed. R. Bankr. P.), it appears premature to address any sanctions issues at this time.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
DRB Capital, LLC Pro Se
US Claims Opco, LLC Pro Se
Advanced Legal Capital, LLC Pro Se
Richard M. Pachulski Pro Se
Plaintiff(s):
Philip James Layfield Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
11:00 AM
Adv#: 2:16-01008 Forrest Fykes, SR et al v. Armen Janian
fr. 7/19/16, 12/13/16, 05/02/17, 09/12/17, 2/27/18, 6/12/18,10/9/18
Docket 1
Debtor(s):
Armen Janian Represented By Leon Nazaretian
Defendant(s):
Armen Janian Represented By
Leon Nazaretian
Plaintiff(s):
Melissa Fykes Represented By Michael D Anderson
Forrest Fykes JR Represented By Michael D Anderson
Valerie Fykes Represented By
Michael D Anderson
Forrest Fykes, SR Represented By Michael D Anderson Leon Nazaretian
Trustee(s):
David M Goodrich (TR) Pro Se
11:00 AM
Adv#: 2:18-01152 Miller v. Abundo et al
§§ 3439.04(a)(1), 3439.07 and 3439.09; (2) To Avoid Transfer and Recover Fraudulent Transfer Pursuant to 11 U.S.C. §§ 544(b), 548(a)(1)(B), 550,
Cal. Civ. Code §§ 3439.04(a)(2), 3439.07 and 3439.09; (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551; (4) For Imposition of Resulting Trust; (5) For Imposition of Constructive Trust; (6) To Disallow Claim Pursuant to 11 U.S.C. § 502(d); and (7) For Turnover of Property of the Estate Pursuant to 11 U.S.C. § 542(a)
fr. 07/17/18, 10/02/18
Docket 1
Tentative Ruling for 12/18/18:
Continue to 3/12/18 at 11:00 a.m. in anticipation that the parties' proposed settlement (dkt. 29, 30) will be approved, and so as to provide sufficient time for performance thereunder and dismissal of this adversary proceeding.
Appearances are not required on 12/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/17/18:
Appearances required. The court has reviewed the parties' joint status report (adv. dkt. 7) and the other filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these
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issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue,
(b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 7/31/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 5/16/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/30/18 Expert(s) - deadline for reports: 12/14/18
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Expert(s) - discovery cutoff (if different from above): 1/11/19 Dispositive motions to be heard no later than: 1/22/19
Joint Status Report: 9/18/18
Continued status conference: 10/2/18 at 11:00 a.m. Pretrial conference: TBD
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anh Tuan Tran Represented By Randy Chang
Defendant(s):
Kirsten Abundo Represented By Randy Chang
Susan Abundo Represented By Randy Chang
Rodolfo Abundo Represented By Randy Chang
Plaintiff(s):
Elissa D Miller Pro Se
Trustee(s):
Elissa Miller (TR) Represented By Jeffrey I Golden
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fr. 9/16/14, 10/21/14, 11/18/14, 11/25/14, 12/16/14, 01/27/15, 2/3/15, 3/10/15, 5/12/15, 07/21/15, 9/8/15,
10/27/15, 11/17/15, 1/19/16, 2/23/16, 3/8/16, 04/26/16,
5/31/16, 7/5/16, 9/13/16, 11/8/16, 11/29/16, 2/7/17,
5/23/17, 9/12/17, 03/06/18, 9/18/18
Docket 1
Tentative Ruling for 12/18/18:
Continue to 12/10/19 at 11:00 a.m. for the reasons set forth in the Trustee's status report (dkt. 542). Appearances are not required on 12/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Continue to 12/18/18 at 11:00 a.m. as a holding date, to be further continued for another 3 to 6 months once this Court's 2019 calendar is determined, for the reasons set forth in the Trustee's status report (dkt. 540). Appearances are not required on 9/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 3/6/18:
Continue to 9/18/18 at 11:00 a.m. for the reasons set forth in the Trustee's status report (dkt. 538). A brief status report from the Chapter 7 Trustee is due 9/4/18, and other parties may but need not join in or file their own status reports.
Appearances are not required on 3/6/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
QTS, INC. Represented By
James R Selth Elaine Nguyen Daniel J Weintraub
Trustee(s):
Timothy Yoo (TR) Represented By Monica Y Kim Jeffrey S Kwong
1:00 PM
Docket 37
Please see the tentative ruling for the status conference (calendar no. 2, 12/18/18 at 1:00 p.m.).
Debtor(s):
Sergio Alfredo Ramirez Represented By Lionel E Giron
1:00 PM
Docket 25
Revised Tentative Ruling for 12/18/18:
Appearances required.
Current issues.
Motion to employ (dkt. 37) (i) Retainer
Proposed counsel explains that Debtor's sister, Ms. Corina Ramirez, provided a pre-petition retainer in the amount of $5,000 (dkt. 37, at PDF 6). A third party who funds a retainer for the debtor (the "Funder") might have interests that are adverse to (or at least not fully alligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a third party is not outright prohibited, it is fraught with ethical concerns.
While Ms. Ramirez has provided this Court with a delcaration (dkt. 37, at PDF 9) that addresses some of the Court's concerns, proposed counsel should be prepared to address the following remaining concerns:
Informed consent of Funder
Has Ms. Ramirez been advised regarding actual and potential conflicts of interest, and that the sole attorney-client relationship and duty of loytalty is with Debtor, not Ms. Ramirez? Who provided such advice: independent counsel, or Debtor's proposed counsel? Has Ms. Ramirez given informed consent? Are those things in writing?
Informed consent of Debtor
Has Debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing?
Other considerations
Has proposed counsel demonstrated or represented to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641
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(Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Proposed counsel's disinterestedness
The parties should be prepared address whether proposed counsel is truly disinterested. Debtor's daughter is also before this Court, in a case that is being jointly administered with this one (In re Karla Ramirez, 2:18-bk-15055-NB). Proposed counsel for Debtor and for Debtor's daughter are closely affiliated if not essentially the same. Debtor and his daughter have financial interactions, including being co-owners of property.
Separate counsel required?
The tentative ruling is that Sergio and Karla Ramirez need counsel who are separate - not affiliated in the ways that their proposed counsel are affiliated. The parties should be prepared to address whether to adopt that tentative ruling, and, if it is adopted, how soon new counsel can be retained.
Deadlines/dates. This case was filed on 9/26/18.
Bar date: 2/7/19 (timely served, dkt. 46).
Plan/Disclosure Statement*: TBD
Continued status conference: 1/29/19 at 1:00 p.m., with no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/4/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Joint administration
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This Court has issued an order for joint administration of In re Karla
Ramirez (Case No. 2:18-bk-15055-NB) (daughter; lead case) and In re Sergio Alfredo Ramirez (Case No. 2:18-21263-NB) (father). See lead case dkt. 86 (the "JointAdmin Order") (entered 11/26/18). That order directs that a notice of joint administration must be filed and served "in each case being jointly administered," and an amended master mailing list must be filed in the lead case that "contains the name and mailing address of all creditors and interest holders from each case being jointly administered." JointAdmin Order, para. 2 (emphasis added). As of the preparation of this tentative ruling, this Court's records do not reflect that those things have been done.
Calendar management
A hearing has been set for 12/18/18 at 1:00 p.m. on the employment application (dkt. 37, 39). The tentative ruling is to continue the status conference in the daughter's case to that date (from its current date of 12/11/18 at 1:00 p.m.) and direct proposed counsel, Mr. Giron and Mr. Tang, to give notice.
Allocation of assets, liabilities, and responsibilities, and potential conflicts between estates. As between the father and daughter, what is the correct record title (and actual ownership interests, if different) of the Downey rental property? Which of them are obligated on the debts secured by that property? Which of them has any interests in the rental income?
Does the father need to file a motion for use of cash collateral; a utility motion; a motion to assume or reject any leases; a budget motion; or other motions in connection with the Downey property?
What actual or potential conflicts may exist between the two bankruptcy estates and their creditors?
This Court anticipates addressing these issues only on a preliminary basis at this time. At the continued status conference they will be addressed more compehensively.
Deadlines/dates. This case was filed on 9/26/18.
Bar date: 2/7/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 12/18/18 at 1:00 p.m., to be concurrent with the hearing on the employment application (dkt. 37, 39).
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sergio Alfredo Ramirez Represented By Lionel E Giron
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Docket 7
Tentative Ruling for 12/18/18:
Appearances required.
Current issues
Amended Schedule A/B (dkt. 89)
Has the ownership of the subject property been finally and conclusively established, as between Debtor, her father (also a debtor in bankruptcy), and any other persons?
Employment of counsel
Please see the tentative ruling for the Sergio Ramirez case (calendar no.
2, 12/18/18 at 1:00 p.m.).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement: TBD
Continued status conference: 1/29/19 at 1:00 p.m., with no written status report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Mold issues etc. At the last hearing, this Court was informed of Debtor's efforts to address the mold issue. Has that issue been resolved?
Motion for joint administration (dkt. 82). Grant, except that, to avoid possible administrative confusion, the new caption (dkt. 82, Ex.1) should list Sergio Ramirez' case number as "2:18-bk-21263-NB" (emphasis added) rather than "2:18-bk-21263-ER."
Debtors Karla and Sergio Ramirez are directed to lodge a proposed order in each of their separate cases authorizing joint administration. Thereafter, the orders will provide that all subsequent documents must be filed in the lead case of Karla Ramirez. The proposed orders should provide that copies of the orders must be served on all parties in interest in both cases.
Order re Sergio Ramirez. After this hearing this Court will prepare an order substantially in the form of dkt.6 (in the Karla Ramirez case) directed to Sergio Ramirez (i.e., directing him to file a status report, directing him to appear in person at a future status conference, notifying all parties in interest that this Court may take various actions at any status conference, etc.).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement: TBD
Continued status conference: 12/11/18 at 1:00 p.m. Brief status report due 12/4/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 9/18/18:
At the hearing on 8/14/18 this Court was persuaded not to convert this case, and instead to continue this hearing, in view of the debtor's apparent agreements with certain key creditors. This Court has reviewed the debtor's status report (dkt. 77).
Current issues.
Mold issues etc. Has the debtor addressed the mold and any other health and safety issues?
Plan (dkt. 76) and Disclosure Statement (dkt. 75). The debtor treats tax claims from the IRS and the FTB as general unsecured claims (dkt. 75, Ex.F). The latter is listed as secured on the claims register. In addition, the claims register reflects Claim no. 4-1 by the LA County Treasurer for $10,433.84 in alleged real estate taxes. How does the debtor propose to treat these claims?
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement: TBD
Continued status conference: 11/6/18 at 1:00 p.m. Brief status report due 10/30/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/14/18:
The tentative ruling is to convert this bankruptcy case to chapter 7. Appearances are not required. After the hearing this Court will prepare the conversion order.
Current issues.
Background. The debtor's status report notes (dkt. 62, p.2:9-12) that the debtor fell behind in mortgage payments and faced a scheduled increase in
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monthly payments from $2,500 to $7,800. That is an extremely unfortunate circumstance, but at this point it appears that there is no way to retain the property, and attempting to do so would simply mean that the debtor and her parents would be "throwing good money after bad." The best alternative may be for the debtor to obtain her chapter 7 discharge and the "fresh start" that is one of the main purposes of the bankruptcy system.
This Court recognizes that the debtor has attempted to save the property by moving out and renting it, as well as by obtaining contributions from her parents. Unfortunately, even if the debt is bifurcated as the debtor seeks to do, the property does not appear to be able to generate positive cash flow after payments on the mortgage. See tentative ruling for calendar no. 4 (denying motion to continue automatic stay). In addition, the property appears to have substantial deferred maintenance and other problems. Despite the efforts of the debtor and her counsel, it does not appear possible to satisfy the requirements of the Bankruptcy Code to keep the property.
Denial of motion to continue automatic stay. As noted above, this Court's tentative ruling is to deny the debtor's motion to continue the automatic stay (see tentative ruling for calendar no. 4).
Budget motion (dkt. 17, 41, 46, 50, 56). This Court granted the debtor's budget on an interim basis (dkt. 46) and orally on a final basis at the hearing on 6/12/18, but no proposed final order was lodged. In addition, since that time the debtor has filed amended bankruptcy Schedules I&J (dkt. 56) which appear to amend the proposed budget. In addition, as set forth in the tentative ruling denying the debtor's motion to continue the automatic stay, it appears that even the latest proposed budget would need to be different, to account for greater adequate protection payments in view of increased interest rates and in view of the urgent need to stop the mold and water intrusion issues at the property from becomming worse (see tentative ruling for calendar no. 4). For all of these reasons, the tentative ruling is that, notwithstanding this Court's prior oral ruling, the budget motion cannot be approved on a final basis; but that issue appears to be moot because of the tentative ruling to convert this case to chapter 7.
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement: N/A.
Continued status conference: N/A.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/10/18:
Continue to 8/14/18 at 1:00 p.m. Appearances are not required on 7/10/18.
Current issues.
Budget motion (dkt. 17, 41, 46, 50, 56). This Court approved the debtor's budget on an interim basis (dkt. 46) and orally on a final basis at the hearing on 6/12/18, but no proposed final order was lodged, and since that time the debtor has filed amended bankruptcy Schedules I&J (dkt. 56). The tentative ruling is to deem the budget motion to be amended by those latest amended Schedules I&J and approve the budget as so amended on a final basis.
Proposed order: The debtors are directed to lodge a proposed order granting the motion via LOU, within 7 days after the hearing date, and a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Other issues. This Court has reviewed the debtor's filed Status Report (dkt. 54). This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: Continue to the date set forth at the start of this tentative ruling. No written status report is required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues.
Budget motion (dkt. 17, 29, 41). Grant the budget motion on a final basis (i) as deemed amended by the latest bankruptcy Schedules I and J (dkt. 41) and (ii) subject to a requirement that, no later than 6/19/18, the debtor must file a declaration showing how it is reasonable to estimate self employment taxes of only $100 per month (see dkt. 41, Sch.J, line 16) or, alternatively, file a declaration establishing a higher dollar amount and lodge a proposed order amending the approved budget accordingly.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and include a provision that the budget is deemed amended by dkt. 41. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (timely served, dkt. 34, 40).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 7/10/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues.
Amended Schedule I (dkt. 26). Bankruptcy Schedule I, paragraph 8a, requires a separate statement for any rental property showing gross receipts, ordinary and necessary expenses, and net income. The debtor has not complied. Why not?
Budget motion (dkt. 17, 29). Nothwithstanding the foregoing, this Court has reviewed the cash collateral motion (dkt. 28), which appears to set forth the gross receipts, expenses, and net income of the subject property. Based on the presumption that this is included in the budget for which the debtor seeks approval, the tentative ruling is to grant the budget motion as amended (dkt. 29), on an interim basis, subject to a final hearing at the same date and time as the continued status conference set froth below. By no later than 6/8/18, the debtor must (i) correct the above-referenced omission from bankruptcy Schedule I and the budget motion, (ii) provide notice of the final hearing on this motion via
U.S. Mail to all parties in interest, and (iii) file a proof of service.
Proposed order: The debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this court's final ruling. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 5/1/18.
Bar date: 8/7/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 8/29/18 using the forms required
1:00 PM
by Judge Bason (DO NOT SERVE yet, except on the U.S.
Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 6/12/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karla Enid Ramirez Represented By Lionel E Giron Kevin Tang
1:00 PM
Docket 181
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aladin Haris Sulejmanagic Represented By Marcus G Tiggs
1:00 PM
Docket 90
Please see the tentative ruling for the status conference (calendar no. 6, 12/18/18 at 1:00 p.m.).
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
Docket 30
Tentative Ruling for 12/18/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether, in view of this Court's order granting relief from the automatic stay, this Court should address the claim objection, or dismiss or convert this case, or take any other actions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/4/18:
Appearances required.
Current issues
Lift stay motion (dkt. 73)/progress toward proposed refinance. There is no tentative ruling, but the parties should be prepared to address (i) whether Debtor's counsel has received the documents necessary to refinance the property, and whether there is a letter of intent or other progress with the proposed refinancing (see dkt. 97), and (ii) whether the pending claim objection (see dkt. 90, 96) is a sufficient basis to continue this status conference. If not, should this Court grant relief from the automatic stay and/or dismiss this case?
Deadlines/dates. This case was filed on 5/29/18 and converted from chapter 13 on 8/8/18.
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Bar date: 11/9/18 (dkt. 55), timely served (dkt. 59).
Plan/Disclosure Statement*: TBD.
Continued status conference (if this case is not dismissed): 1/8/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Continue to 12/4/18 at 1:00 p.m., with a brief status report due by 11/20/18. Appearances are not required on 11/6/18.
This Court has reviewed the Debtor's monthly operating report (dkt. 86). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 10/9/18:
Appearances required.
Current issues
Budget motion (dkt. 49). Without prejudice to any later assertion by any party in interest that the debtor's proposed expenses are not in fact "ordinary
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course," the tentative ruling is to grant the budget motion based on the debtor's declaration (dkt. 76) in response to the questions raised in this Court's order (dkt. 69).
Employment application for Tenina Law, Inc. (dkt. 50, 52, 53). Proposed counsel for the debtor should be prepared to address whether the declarations (dkt. 77, 79) in response to this Court's order (dkt. 67) can be interpreted broadly enough to address all "connections" that are required to be disclosed under Rule 2014 (Fed. R. Bankr. P.).
For example, this Court's order (dkt. 67, p.3:6-7) asked "have there been" - i.e., in the present or past - any economic or business or personal transactions between the Funder/Donor and the debtor. In response, the debtor declares (dkt. 67, para. 7), "[m]y Donor does not have any business or economic transaction with me ...." (Emphasis added.)
Another concern in that both proposed counsel and Debtor appear to be under the mistaken impression that Debtor could, if necessary, waive conflicts. That is not possible, because Debtor is acting not just for herself but as a trustee for the benefit of all creditors.
Another concern is that there is no indication that Donor has been fully apprised of this Court's concerns.
The tentative ruling is that, before this Court issues any order approving the application, counsel must file Debtor's supplemental declaration (i) quoting Rule 2014 in full, (ii) confiming that there are no "connections" within the meaning of that Rule, except for Donor's friendship with Debtor, (iii) confirming that Debtor understands that (pursuant to this Court's conclusion of law) any conflicts that might turn out to exist cannot be waived, and (iv) confirming that Debtor has provided to Donor a copy of this Court's order (dkt. 67) and the responsive declarations (dkt. 77, 79, and the declaration described in this paragraph). Subject to the foregoing, and the terms of the stipulation with the United States Trustee (dkt. 58), the tentative ruling is to approve the application.
Proposed orders. Whatever this Court's rulings on the foregoing issues, Debtor is directed to lodge proposed orders via LOU within 7 days after the hearing date, and attach a copy of these tentative rulings, thereby incorporating them as this Court's final rulings, except as modified on the record. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 5/29/18 and converted from chapter
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13 on 8/8/18.
Bar date: 11/9/18 (dkt. 55), timely served (dkt. 59).
Plan/Disclosure Statement*: file by 12/23/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 11/6/18 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
This court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 9/4/18:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 5/29/18 and converted from chapter 13 on 8/8/18.
Bar date: 11/9/18 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 12/23/18 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - the court will set a deadline and procedures at a later time).
Continued status conference: 10/9/18 at 1:00 p.m. No written status
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report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Grant application for hearing on shortened time (see evidence of service, dkt. 31, 33). There is no tentative ruling on the motion to vacate dismissal of this chapter 13 case with a 180-day bar, so as to permit the debtor to pursue chapter 11 relief either in this case or by filing a new case. The parties should be prepared to address any opposition at the hearing. See Order Shortening Time (dkt. 28). Appearances required.
Key documents reviewed (in addition to motion papers): Application for order shortening time (dkt. 26) and evidence of service (dkt. 31, 33).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nandini Mariwala Savin Represented By Alla Tenina
1:00 PM
Movant(s):
Nandini Mariwala Savin Represented By Alla Tenina
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
fr. 4/12/16, 04/26/16, 05/17/16, 8/2/16, 9/6/16, 11/8/16, 11/29/16, 1/17/17, 1/31/17, 03/21/17, 4/11/17, 06/13/17,
9/19/17, 11/14/17, 02/13/18, 7/10/18, 9/18/18
Docket 271
Tentative Ruling for 12/18/18:
Continue to 6/11/19 at 1:00 p.m. as requested in the status report (dkt. 317), with a brief status report due 5/28/19. Appearances are not required on 12/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Continue to 12/18/18 at 1:00 p.m. with a likely continuance for an additional three months once this Court's 2019 calendar is set. See dkt. 300. Appearances are not required on 9/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED FOR BREVITY]
1:00 PM
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
1:00 PM
5/29/18, 9/18/18
Docket 1
Tentative Ruling for 12/18/18:
Continue to 1/29/19 at 1:00 p.m., with no written status report required, and with the expectation that it might go off calendar if a final decree has been issued by then. Appearances are not required on 12/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/18/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues. This status conference was continued from 8/18/18 to 9/18/18 (dkt.142). Based on recent docket activity, this Court is aware of the following issues.
Dispute with State Compensation Insurance Fund (dkt. 145-156, 158, 159). Has this matter been resolved? Perhaps so, because the Status Report (dkt. 170) does not mention it. If not, what is the status of the parties' disputes?
Final decree (dkt. 141, 151). The Status Report (dkt. 170) projects filing another motion by 12/31/18, so the tentative ruling is to continue this post-
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confirmation Status Conference to 12/18/18 at 1:00 p.m., with no written status report required and with the expectation that it might go off calendar if a motion for a final decree has been filed by then.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/29/18:
Continue to 8/18/18 at 1:00 p.m., brief status report due 8/4/18, based on the debtor's status report (dkt. 140), with those dates all subject to being mooted if a final decree is issued before that time. Appearances are not required on 5/29/18.
Current issues. This court has no issues to raise sue sponte.
Deadlines/dates. This case was filed on 1/1/17, and the debtor's plan was confirmed on 10/24/17 (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/18:
Continue to 5/29/18 at 1:00 p.m., brief status report due 5/15/18, all subject to being mooted if a final decree is issued before that time. Appearances are not required on 2/27/18.
Current issues. This court has no issues to raise sue sponte.
1:00 PM
Deadlines/dates. This case was filed on 1/1/17, and the debtor's plan was confirmed on 10/24/17 (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/12/17:
Continue to 2/27/18 at 1:00 p.m., brief status report due 2/13/18, all subject to being mooted if a final decree is issued before that time. Appearances are not required on 12/12/17.
Current issues. This court has no issues to raise sue sponte.
Deadlines/dates. This case was filed on 1/1/17, and the debtor's plan was confirmed on 10/24/17 (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rescue One Ambulance Represented By Michael Jay Berger
1:00 PM
Docket 87
Tentative Ruling 12/18/18
Continue to 3/26/19 at 1:00 p.m. with a brief status report due 3/19/19, with the expectation that if a final decree is issued then the continued status conference will come off calendar. See status report (dkt. 113). Appearances are not required on 12/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling 9/18/18
Appearances required.
At a hearing on 7/10/18 this Court orally ordered that (1) the debtor's disclosure statement was approved on a final basis (as reflected in the written order at dkt. 101), (2) the debtor's plan was confirmed, and (3) this post-confirmation Status Conference was set, with a written status report due no later than 9/4/18. No proposed written order has been lodged confirming the debtor's plan. Counsel for the debtor is directed to do so immediately. No written status report was filed. Counsel for the debtor is directed to address why not.
Assuming there are satisfactory responses to the foregoing issues, the tentative ruling is to continue this post-confirmation Status Conference to 12/18/18 at 1:00 p.m., with a written status report due 12/4/18.
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Steve O Chong Represented By Lionel E Giron Kevin Tang
Joint Debtor(s):
Edwina Theresa Chong Represented By Lionel E Giron Kevin Tang
1:00 PM
11 U.S.C. Sec. 1115
fr. 10/9/18, 11/6/18
Docket 11
Tentative Ruling for 12/18/18:
See tentative ruling for the Status Conference (calendar no. 13, 12/18/18 at 1:00 p.m.).
Tentative Ruling for 11/6/18:
See tentative ruling for the Status Conference (calendar no. 22, 11/6/18 at 1:00 p.m.).
Tentative for 10/16/18
Grant on an interim basis, with a continued hearing on 11/6/18 at 1:00 p.m., and a deadline 10/23/18 for the debtors to file their declarations addressing (1) whether their charitable contributions of $703/mo. are consistent with past levels of charitable giving (with attached evidence) and (2) how they will turn their Yorkshire Way rental property into a cash-flow-positive property. Appearances are not required on 10/9/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
Movant(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
1:00 PM
fr. 10/16/18, 11/6/18
Docket 20
Tentative Ruling for 12/18/18:
See tentative ruling for the Status Conference (calendar no. 13, 12/18/18 at 1:00 p.m.).
Tentative Ruling for 11/6/18:
See tentative ruling for the Status Conference (calendar no. 22, 11/6/18 at 1:00 p.m.).
Tentative Ruling for 10/16/18:
Grant the motion (docket no. 50) on an interim basis, subject to the conditions set forth below, with a final hearing on 11/6/18 at 1:00 p.m., and a deadline of 10/18/18 for the movant to file and serve a notice of the final hearing.
Appearances are not required on 10/14/18.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of the court. Do not repeat the terms set forth in the motion or any stipulation.
Incorporate those terms by reference, subject to any modification by this court (including the docket number of the document).
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
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In addition to the postpetition security interests that are automatically
provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), the debtor is directed to maintain insurance in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. The debtor is directed to remain current on payments for such insurance.
Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). The debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or the court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment
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then postpetition liens are likewise limited (unless otherwise expressly provided below); and postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11
U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the chambers of the presiding judge to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
1:00 PM
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
Movant(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
1:00 PM
fr. 11/6/18
Docket 18
Tentative Ruling 12/18/18:
See tentative ruling in Status Conference (calendar no. 13, 12/18/18 at 1:00 p.m.).
Tentative Ruling 11/6/18:
Please see tentative ruling in status conference (calendar no. 22, 11/6/18 at 1:00 p.m.).
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
1:00 PM
Docket 26
Tentative Ruling for 12/18/18:
Appearances required
Current Issues
Budget Motion (dkt. 11) Grant on a final basis.
Amended Cash Collateral Motion (dkt. 50)
Grant on a final basis. Per Debtors' status report (dkt. 49, p.3), the proposed order must include language that it shall not be constued as endorsing the statements to which creditor Poser Investments, Inc. objects. See dkt. 23.
Motion to Employ Counsel (dkt. 18)
Grant on a final basis, based on the (late-filed) declarations of Julius and John Adeoye (dkt. 57, 58). See Interim Order (dkt. 39) & Egbase Decl. (dkt. 47).
Proposed orders
Debtors are directed to lodge proposed orders via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/12/18.
Bar date: 1/11/19 (timely served, dkt. 59).
Plan/Disclosure Statement*: TBD
Continued status conference: 1/29/19 at 1:00 p.m., no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/6/18:
Appearances required by counsel for the debtor and by Debtors themselves.
Current issues
Status report (dkt. 43, 45)
Debtors have not used the Local Form, which is mandatory in this case (see Judge Bason's posted procedures, available at www.cacb.uscourts.gov). The tentative ruling is to set a deadline of 11/13/18 to file the form and serve it on the United States Trustee.
Motion to Employ Debtors' Counsel (Dkt. 18)
Debtors have not adequately addressed the issues in this Court's interim order (dkt. 39). Although proposed counsel declares (dkt. 47) that he has "learned" (from unspecified hearsay) that Debtors' relatives have funded the
$15,000 retainer as a gift, there is no declaration from the two alleged donors confirming this, and confirming all of their "connections" with all parties in interest and their attorneys and accountants (see dkt. 39, section 6.(a)), and their informed consent to potential or actual conflicts (id., sec. 6.(c)), and Debtors' informed consent (id., sec. 6.(d)). The tentative ruling is to continue this matter to the same time as the continued status conference (see below) and set a deadline of 11/13/18 to file appropriate declarations and serve them on the United States Trustee.
(c) MOR1 (Sept., 2018, dkt. 36)
Debtors report that they spent $1,350.43 in cash, with no breakdown and just a vague description about "personal expenses," "charitable contributions," etc. The tentative ruling is that any proposed order authorizing the proposed budget must include a prohibition on Debtors spending more than $50 cash on any one item or $250 cash in the aggregate per month without attaching photocopies of receipts.
Several insurance policies have expired or are about to (see dkt. 36, at PDF p.16). What are Debtors doing about that?
(d) Motion to Use Cash Collateral (dkt 20)
1:00 PM
First, Debtors failed to lodge a proposed order authorizing the use of cash collateral on the terms set forth in the adopted Tentative Ruling for 10/16/18 (see calendar no. 20, 11/6/18 at 1:00 p.m., which includes a copy of that earlier tentative ruling). The tentative ruling is to set a deadline of 11/13/18 to lodge that proposed order, with a copy of that tentative ruling attached.
Second, the original motion appears to have been superseded by an amended motion, which has not been separately filed and served but instead is attached as an exhibit to a supplemental declaration. See dkt. 29, Ex.B. The tentative ruling is to set a deadline of 11/13/18 to file and serve that motion, which will be heard at the same date and time as the continued status conference (see below).
Third, the tentative ruling is that no order granting Debtors' motions regarding cash collateral shall be construed as endorsing the statements to which creditor Poser Investments, Inc. objects. See dkt. 23. Debtors are directed to make this clear in their proposed orders.
(b) Motion for Order Approving a Budget (Dkt. 11)
Grant on an interim basis, with a continued hearing at the same time as the continued status conference (see below). The tentative ruling is that Debtors' (late-filed) declaration (dkt. 29 & Ex.A) has adequately addressed this Court's concerns about charitable donations.
Deadlines/dates. This case was filed on 9/12/18.
Bar date: 1/11/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD
Continued status conference: 12/18/18 at 1:00 p.m., brief status report due12/11/18.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By
Anthony Obehi Egbase
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
Anthony Obehi Egbase
2:00 PM
BOBS, LLC
vs DEBTOR
Docket 687
- NONE LISTED -
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein
2:00 PM
Adv#: 2:18-01203 The Bird Nest, LLC et al v. Hollister
fr. 8/14/18
Docket 1
Continue to 6/4/19 at 2:00 p.m. because, as set forth in the parties' stipulation (adv. dkt. 8) (approved by order at adv. dkt. 9), this adversary proceeding is stayed pursuant to the parties' settlement that is still being implemented in the bankruptcy case. Appearances are not required on 12/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
Defendant(s):
Dana Hollister Pro Se
Plaintiff(s):
The California Institute of the Sisters Represented By
Howard Steinberg
Roman Catholic Archbishop of Los Represented By
Howard Steinberg
2:00 PM
The Bird Nest, LLC Represented By Howard Steinberg
2:00 PM
Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
fr. 10/2/18, 12/4/18
Docket 36
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Represented By
Kevin P VanLandingham
Movant(s):
Bureau of Land Management Represented By
Kevin P VanLandingham
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Luis A Solorzano
Giovanni Orantes
2:00 PM
Adv#: 2:18-01057 Riverwood Gas and Oil LLC v. Bureau of Land Management
(2) Turnover Under 11 U.S.C. § 542
fr. 05/08/18, 06/26/18, 09/18/18, 10/2/18, 12/4/18
Docket 1
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Bureau of Land Management Represented By
Kevin P VanLandingham
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Luis A Solorzano
Giovanni Orantes
2:00 PM
Adv#: 2:17-01326 Riverwood Gas and Oil LLC v. Western States International et al
3) Interfering with Economic Relationship; 4) Slander of Title;
5) Quiet Title; 6) Declaratory Relief
fr. 8/22/17, 11/14/17, 1/23/18, 02/13/18, 03/06/18, 4/17/18, 5/8/18, 6/26/18, 9/18/18, 10/2/18, 12/4/18
Docket 1
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Defendant(s):
Phoenix Oil Gas Inc. Pro Se
JNDDC, LLC. Pro Se
Flavio M. Rodriguez Pro Se
Longbow LLC. Represented By
D Max Gardner
Leonard Kroyton Pro Se
Glenn Morinaka Pro Se
James Robert Zadko Pro Se
Derek Wilshee Pro Se
2:00 PM
Michael Smushkevich Pro Se
DOES 1 through 10, inclusive Pro Se
David Smushkevich Pro Se
Alex Gendelman Pro Se
Tatyana Grukhina Pro Se
United Pacific Energy Operations Pro Se
Charles Ross Pro Se
Tearlach Resources (California) LTD Pro Se Gas and Oil Technologies, Inc. Pro Se United Pacific Energy Corporation Pro Se Ingrid Aliet-Gass Pro Se
Western States International Represented By Mitchell E Rishe
Paul Guiller Pro Se
Plaintiff(s):
Riverwood Gas and Oil LLC Represented By Mike Montes
2:00 PM
INGRID ALIET-GASS
vs DEBTOR
Docket 130
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
Movant(s):
Ingrid Aliet-Gass Pro Se
2:00 PM
1/23/18, 02/13/18, 03/06/18, 4/17/18, 5/8/18,
6/26/18, 9/18/18, 10/2/18, 12/4/18
Docket 1
Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
2:00 PM
Docket 137
Please see tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 12 (12/18/18 at 2:00 p.m.).
Debtor(s):
Maximum Legal (California), LLP Represented By
Martin J Brill Daniel H Reiss Lindsey L Smith
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer Steven Werth
2:00 PM
Docket 131
Please see tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 12 (12/18/18 at 2:00 p.m.).
Debtor(s):
Maximum Legal (California), LLP Represented By
Martin J Brill Daniel H Reiss Lindsey L Smith
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer Steven Werth
2:00 PM
Docket 116
Tentative Ruling for 12/18/18:
Please see tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 12 (12/18/18 at 2:00 p.m.).
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Debtor(s):
Maximum Legal (California), LLP Represented By
Martin J Brill Daniel H Reiss Lindsey L Smith
Trustee(s):
Howard M Ehrenberg (TR) Represented By Jason Balitzer Steven Werth
2:00 PM
Docket 1
Tentative Ruling for 12/18/18:
Please see tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 12 (12/18/18 at 2:00 p.m.).
Tentative Ruling for 12/6/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (12/6/18 at 10:00 a.m.).
Tentative Ruling for 10/24/18:
Please see the tentative ruling for the status conference in the Layfield & Barrett
case, calendar no. 5 (10/24/18 at 10:00 a.m.).
Tentative Ruling for 9/18/18:
Please see the tentative ruling for the Layfield & Barrett matter (calendar no. 1, 9/18/18 at 2:00 p.m.).
Debtor(s):
Philip James Layfield Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
2:00 PM
fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18
Docket 323
Tentative Ruling for 12/18/18:
Appearances required
General matters
Combined status conferences in the interrelated bankruptcy cases This hearing includes Status Conferences in each of the three related
bankruptcy cases before this Court: (a) In re Layfield & Barrett, APC, Case No. 2:17-bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay- Invol."), (c) In re Maximum Legal (Cal.), LLP, Case No. 2:17-bk-18433-NB ("Max-CA").
Matters on Calendar Today
Chapter 7 Trustee's Motion for Order (1) Approving Stipulation Relating to Disbursement of Funds, and (2) Closing Case (Max-CA, dkt. 137)
The tentative ruling is to grant this motion, but the parties should be prepared to address the effect on the pending adversary proceeding entitled Wellgen Standard LLC v. Maximum Legal (California), LLP et al. (L&B Case, No. 2:17-bk-19548-NB; Adv. No. 2:17-ap-01503-NB) (the "Wellgen Adv.P.").
On a related matter, as part of case management in the L&B case, the tentative ruling is to continue the Status Conference currently set in the Wellgen Adv.P. from 1/15/19 at 11:00 a.m. to the same date and time as the Status Conferences in the related bankruptcy cases, set forth below.
Final Fee Application of SulmeyerKupetz (Max-CA, dkt. 131) Grant: $12,693.52 in fees and $52.48 expenses.
Deadlines/dates. This case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17.
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
2:00 PM
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: The tentative ruling is to continue the status conferences in the L&B and Lay-Invol cases to 2/5/19 at 2:00 p.m., to be concurrent with the related relief from stay hearings (regarding the Utah Condo matters), with a brief status report by the trustees due 1/29/19.
*Warning: special procedures apply (see order setting initial status conference).
Tentative Rulings for 12/6/18 and prior:
[OMITTED FOR BREVITY, AND BECAUSE THEY HAVE BEEN LARGERLY MEMORIALIZED. See, e.g., L&B dkt. 367, 377]
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
8:30 AM
Docket 22
Continue to 2/21/19 at 8:30 a.m. to address the following issues. Appearances are not required on 12/18/18.
Appraisal; date of valuation. The junior lienholder has provided an "exterior only" appraisal (dkt. 26), but needs additional time to obtain an appraisal based on an interior inpection and whatever analysis that appraiser and/or the junior lienholder deem appropriate regarding Debtor's estimate of repair costs. Debtor is directed to provide reasonable access for those purposes. The junior lienholder is directed to file and serve the appraisal at least 14 days before the continued hearing. Note: Judge Bason's tentative ruling is to require valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
At the continued hearing the parties should address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Marcelino Torres Represented By Kevin T Simon
Movant(s):
Marcelino Torres Represented By Kevin T Simon Kevin T Simon Kevin T Simon
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 60
Deny for the reasons stated in the Chapter 13 Trustee's opposition (dkt. 65). Appearances are not required.
Proposed order: The Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
David Salas Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Fabiola Torres Represented By Rebecca Tomilowitz
Movant(s):
David Salas Represented By
Rebecca Tomilowitz
Fabiola Torres Represented By Rebecca Tomilowitz
8:30 AM
Trustee(s):
Rebecca Tomilowitz
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 20
Appearances required. There is no tentative ruling, but the parties should be prepared to address the following issues:
Nondisclosure re housing expenses. What is Debtor's authority for the proposition that "[t]he direct payment of my housing expenses by my employer [Debtor's brother's dental practice] is the reason why there is no line item for its payment in [bankruptcy] Schedule J" and that it "would not be proper to have the housing allowance added to income in [bankruptcy] Schedule I and deducted from [bankruptcy] Schedule J, as I don't actually receive the payments" (dkt. 30, p.4:17-20)?
Nondisclosure re Tesla vehicle expenses. Is Debtor asserting a similar argument regarding the "car allowance" that he receives from his brother's dental practice? Again, what is the authority for this argument?
Other disclosure issues. (a) What is Debtor's intent regarding the Merced property and associated debt? They are listed on his bankruptcy schedules but his chapter 13 plan (dkt. 12) proposes neither to surrender the Merced property nor to pay the mortgage. (b) What are the details regarding Debtor's precipitous decline in income reflected on his Statement of Financial Affairs? Did Debtor transfer any client lists or other intangible or tangible property to his brother's dental practice, or to anyone else? (c) More generally, can parties in interest and this Court rely on the completeness and accuracy of Debtor's bankruptcy disclosures?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Yasser Emad Sadek Represented By Louis J Esbin
Movant(s):
James J Joseph Represented By Kathleen J McCarthy
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
REDIGER INVESTMENT MORTGAGE FUND, LLP
vs DEBTOR
Docket 38
Tentative Ruling for 12/20/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This hearing has been continued multiple times for Debtor to sell the property (see, e.g., dkt. 51, 53, 55, 59, 62, 65). Has the sale closed?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/4/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 9/4/18 hearing, this Court continued the matter at the debtor's request for more time to sell the property. Thereafter the matter was further continued by stipulation and order thereon (dkt. 51, 53). Prior to the
8:30 AM
scheduled 11/6/18 hearing, the matter was once against continued by stipulation and order thereon (stipulation agreed to orally at confirmation hearing of Debtor's chapter 13 plan, order thereon dkt. 59). Since the order on Debtor's stipulation, this Court has granted Debtor's motion for authority to sell real property, subject to the Chapter 13 Trustee's comments and objections (dkt. 55, order thereon dkt. 62).
There is no tentative ruling, but the parties should be prepared to discuss the status of the sale of the property, and any other matters relevant ot this motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 7/10/18 hearing, this Court continued the matter at the debtor's request for more time to seek refinancing (see the debtor's response, dkt. 42). There is no tentative ruling, but the parties should be prepared to address the status of this case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Tentative Ruling for 7/10/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether they will agree to a continuance for refinancing as requested by the debtor (see the debtor's response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Beverly Lee Monroe Represented By Stephen S Smyth
Movant(s):
Rediger Investment Mortgage Fund Represented By
Misty A Perry Isaacson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr, 11/29/18
Docket 77
Deny, for the reasons stated and evidence provided in the opposition papers (dkt. 99). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Didra L Brown Represented By Sanaz S Bereliani
Movant(s):
Didra L Brown Represented By Sanaz S Bereliani Sanaz S Bereliani
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Jerson Estrada; Request Claim to be Disallowed fr. 06/28/18, 08/02/18, 08/30/18, 10/25/18
Docket 24
Tentative Ruling for 12/20/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to apprise this Court whether this claim objection should be continued or if it has been effectively resolved by any judgment or other developments in the non- bankruptcy action, Jerson Estrada v. Airport General Auto Repair, Inc. (Superior Court, County of L.A., BC643391).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/25/18:
Continue to 12/20/18 at 8:30 a.m. because this matter is being resolved in the nonbankrupty action in Jerson Estrada v. Airport General Auto Repair, Inc. (Superior Court, County of L.A., BC643391). See Order (dkt. 44) (granting relief from automatic stay for that action). Appearances are not required on 10/25/18.
If appearances are not required at the start of this tentative ruling but you
8:30 AM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/30/18:
Appearances required. There is no tentative ruling but the parties should be prepared to address the following issues.
This Court has reviewed the claim objection (dkt. 24), claimant's opposition (dkt. 35), and debtor's reply (dkt. 37). The claimant asserts (dkt. 35, p.4, n.1) that he "is also filing a motion from stay in order to have his claim adjudicated and liquidated in the State Court Litigation" and he claims that this bankruptcy case was filed "less than two months before the State Court Litigation's scheduled trial date." Dkt. 35, p.2:23-24. But, as of the preparation of this tentative ruling, no such motion for relief from the automatic stay has been filed.
The debtor asserts that this bankruptcy case was filed to protect the debtor from this litigation, but he does not cite authorities addressing whether claims litigation should be conducted in the Bankruptcy Court or in State Court. See, e.g., 28 U.S.C. 1334(c)(2) (mandatory abstention if non-core proceeding has been commenced, "and can be timely adjudicated," in a State forum of appropriate jurisdiction); 28 U.S.C. 1334(c)(1) (discretionary abstention); In re Tucson Estates, Inc., 912 F.2d 1162, 1166-67 (9th Cir.1990).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/2/18:
Grant, with a caution that in future counsel for the debtor must include a
8:30 AM
cost/benefit analysis in connection with every claim objection. (In this instance that requirement is being excused because of the nature of the dispute at issue and because the proposed distributions (dkt. 29) appear to make the cost of this claim objection worth the attorney fees involved in prosecuting it; but in future this Court does not intend to do the analysis for the movant.) Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hossein Daneshvar Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 26
Appearances required. The tentative ruling is that, after this Court reviews various concerns with Mr. Graham on a preliminary basis at this hearing, this Court will issue an order that sets a deadline for Mr. Graham to respond in writing regarding those concerns, and that order will also set an evidentiary hearing at which Mr. Graham must testify.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shaquandway Bates Represented By Justin D Graham
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
not be dismissed again, and why any dismissal should not include a 180-day bar under U.S.C. 109(g)(1)
Docket 49
Discharge the order to show cause (dkt. 49) because (1) the filing fee for the amended verification of the creditor matrix has now (very belatedly) been paid and (2) based on Debtor's declaration (dkt. 59, para. 4) her "understanding" was that Mr. Graham had "secured an extension ... so that we could add more creditors to the case." Although that "understanding" does not explain why Debtor would sign a document stating that her list of creditors was "complete" and "correct" when it was not, for present purposes it establishes a sufficient defense of advice of counsel. Appearances are not required.
This Court will prepare the order discharging the order to show cause.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Shaquandway Bates Represented By Justin D Graham
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 52
Appearances required. There is no tentative ruling, but Debtor must address the issues raised by the Chapter 13 Trustee (dkt. 59).
Note: As set forth in this Court's orders setting Debtor's Motion to Modify Plan or Suspend Plan payments for hearing (dkt. 54, 55), the motion was filed using the incorrect ECF code, so it appears that the Chapter 13 Trustee did not have adequate notice. Counsel for Debtor is cautioned that any future attempt to obtain relief without adequate notice may result in denial of the request, or other remedies including (if appropriate) sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Urik Gagarin Ghazalian Represented By Roland H Kedikian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 33
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
If this Court is not persuaded to waive the requirement for notice to creditors under Rule 2002(a)(3), the tentative ruling is to require notice to all creditors of a hearing on the next regular Chapter 13 day - on 1/24/19 at 8:30 a.m. - on whether to approve the stipulation and the compromise it embodies, with the usual deadlines to file and serve (a) such notice, (b) any opposition, and (c) any reply. In addition, the tentative ruling is not to require any written motion to approve the stipulation/compromise or any memorandum of points and authorities, in view of the comparatively small dollar amount at stake in comparison to the total dollars distributed, and in view of the Chapter 13 Trustee's review and approval of the proposed stipulation/compromise.
The tentative ruling is that any proposed order approving the stipulation/compromise must include an ordering paragraph expressly making any relief granted by this federal Bankruptcy Court subject to whatever relief may be required from the State Court from its order freezing the subject bank account. The parties should be prepared to address whether they have agreed on proposed language to that effect.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Lee Jessup Represented By
Nicholas S Nassif
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 51
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in this Court's order setting this hearing (dkt. 55).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Humberto Espeleta Represented By Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
Docket 11
Debtor(s):
Sharon Whitaker Represented By Erika Luna
Trustee(s):
Kathy A Dockery (TR) Pro Se